![]() ![]() Lerner asserted invalidity as the invoice and AOB were dated the same day and an invoice is a demand for payment for services performed, not an estimate of the cost of prospective services (“an invoice and an estimate are not the same thing”).Īfter hearing argument, Judge Buie concurred with Ms. Relying on the First DCA decision in Glantz, Ms. In the Response to Defendant’s Motion to Dismiss, Plaintiff alluded to the fact that this did not occur, arguing provision of the estimate was a condition precedent to a contract being formed and, once the estimate was attached, a contract was formed. Coral Lerner focused on the requirement that the estimate be provided at the time the AOB was executed, pursuant to Kivovitz. Plaintiff asserted entitlement to recoupment of the costs for preparing the report based on an Assignment of Benefits (“AOB”) and attached an invoice to the Complaint as support.ĭefendant argued the invoice attached to the AOB did not constitute an estimate for purposes of compliance with the AOB statute. In this case, repeat-Plaintiff, The Kidwell Group, filed a Breach of Contract suit after Defendant denied payment for an engineering report prepared for the policyholder. The Honorable Judge Carsandra Buie presided. Kelley Kronenberg Attorney, Coral Lerner, assisted by Partner, Scott Dornstein, prevailed on a Motion to Dismiss in a Breach of Contract action stemming from a First-Party Property homeowners’ insurance claim dispute which centered on the validi ty of an Assignment of Benefits. Finally, the court granted Popeye’s motion to dismiss Pinnacle’s Florida deceptive trade practices claim as there was no injury to a “consumer.ApShare Kelley Kronenberg Secures Dismissal in Seminole County Breach of Contract Case The court granted Popeyes’ motion to dismiss a second good faith and fair dealing claim, finding that Popeyes’ reasons for terminating Pinnacle’s exclusivity were not pretextual, but rather supported by the terms of the development agreement. The court rejected Popeyes’ argument that Pinnacle failed to allege actual damages on its breach of contract claim, but the court did dismiss the breach of the implied covenant of good faith and fair dealing claim as duplicative of the breach of contract claim. Finally, Pinnacle alleged that the termination constituted a violation of Florida’s deceptive trade practices statute. Pinnacle alleged that Popeyes further breached the implied covenant by terminating the exclusivity provision of the development agreement for pretextual reasons. Pinnacle sued Popeyes, alleging that Popeyes evaluated restaurant sites proposed by Pinnacle under different criteria than it applied in comparable markets-thereby breaching both the development agreement and the implied covenant of good faith and fair dealing. ![]() When Pinnacle failed to meet the development requirements, Popeyes first rescinded Pinnacle’s exclusive territories and then terminated its franchise agreements, as permitted by the development agreement. ![]() Pinnacle Food entered into a development agreement with Popeyes which obligated Pinnacle to meet certain development requirements and operational metrics. A federal court in Florida recently granted a franchisor’s motion to dismiss a franchisee’s claim for breach of the implied covenant of good faith and fair dealing, but allowed a claim for breach of contract to proceed. ![]()
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