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Westgate Resorts, Ltd. v. Sussman
Citation: 387 F. Supp. 3d 1318Docket: Case No. 6:17-cv-1467-Orl-37DCI
Court: District Court, M.D. Florida; May 31, 2019; Federal District Court
Roy B. Dalton Jr., a United States District Judge, addresses the pervasive belief that lawyers are inherently dishonest, urging aspiring lawyers to prioritize honesty in their profession. He emphasizes the importance of integrity, suggesting that if one cannot commit to being an honest lawyer, they should pursue a different career. The case centers on defendant Mitchell Reed Sussman, a California real estate attorney specializing in relieving timeshare owners of their obligations. Sussman instructs clients to cease payments, sends demand letters to timeshare companies, and records another owner on the deed—all for a fee—while misleading clients into believing they are free of their obligations. However, from the perspective of the timeshare company, Westgate Resorts, Ltd., the owners’ contractual obligations remain intact. Westgate, having faced repeated financial losses due to Sussman’s actions, files a lawsuit seeking to permanently enjoin his practices and recover unpaid fees. The lawsuit includes claims of tortious interference with existing contracts and violations of Florida's Deceptive and Unfair Trade Practices Act (FDUTPA). The case has become highly contentious, with significant discovery disputes leading to sanctions and cross-motions for summary judgment. The court outlines the roles of the key parties involved: Westgate (the seller of timeshares), Sussman (the attorney), and the timeshare owners (the clients). Westgate operates a deed-based timeshare system, requiring buyers to undergo a detailed purchase process that includes presentations, contracts, and annual payments for maintenance and related costs. Failure to comply with these obligations can result in penalties, including liens and litigation for recovery of owed amounts. Liability for common expenses related to timeshare ownership extends to successors in interest. Divesting from Westgate timeshare ownership is complex, with limited options for owners. According to the Declaration, owners must adhere to Westgate's Right of First Refusal, which allows Westgate the option to purchase the timeshare under the same conditions as offered to a third party. This right is activated when an owner identifies a buyer, requiring the owner to notify Westgate and supply relevant transaction documents. Westgate can request additional information and has the authority to either approve the transfer or offer to buy the timeshare for the same price. The enforceability of this provision is strict; any sale without Westgate's waiver of the Right of First Refusal is null and void. Owners may also negotiate with Westgate on a case-by-case basis, particularly if they demonstrate financial hardship. Westgate has a specific hardship application process where owners must provide documentation of their situation. If accepted, Westgate may negotiate a settlement typically involving a fee, leading to a warranty deed in lieu of foreclosure. If an owner cannot find a buyer and Westgate refuses to take back the timeshare, the owner faces the dilemma of either continuing payments or defaulting. Defaulting risks foreclosure, which can be judicial or non-judicial. In judicial foreclosure, Westgate sues the owner, eventually reclaiming the timeshare to market and sell it through standard channels, pricing it consistently regardless of the method of return. Defaulting owners who owe a mortgage may still face continued collection efforts from Westgate. The excerpt also introduces Mr. Sussman, a California real estate attorney with 41 years of experience who has shifted his practice to assist timeshare owners in exiting their agreements. He has gained recognition for successfully suing developers to facilitate timeshare relinquishments. In 2013, he was approached by Timeshare Exit Team (TET), which previously struggled to sell timeshares in the secondary market due to their minimal value. TET sought to revise its business model in light of this challenge. TET engaged Mr. Sussman to manage client files and provide expertise on exiting timeshares, as TET lacked the knowledge to dispose of them. Under this arrangement, TET interacted with timeshare owners, while Sussman communicated with developers. He developed four methods for timeshare exits: 1. **Negotiation** - Preferred method where Sussman requests the developer to release the owner in exchange for a fee. 2. **Resignation** - Applicable for non-deeded timeshares, where Sussman sends a notice on behalf of the owner to resign from the timeshare club. 3. **Deed Back** - Sussman prepares a quitclaim deed to transfer the owner's interest back to the developer, records it, and notifies the owner of the successful exit. 4. **Deed to Associate** - Similar to the deed back, but transfers the interest to one of Sussman’s contractors, with no purchase agreement involved. Regardless of the method used, all owners begin by sending a demand letter to the developer alleging fraud and misrepresentation. The letter notifies the developer of the client's intention to cease payments and expresses willingness to execute a deed in lieu to expedite the return of the timeshare. The letter cites relevant Florida nonprofit corporation laws affirming the right to resign from membership without additional approval. Future communications are directed to Sussman’s office. The Federal Fair Debt Collection Practices Act (15 USC 1692c) and California's Fair Debt Collection Practices Act (Civil Code 1788.14(c)) prohibit debt collectors from communicating with a debtor once the debtor's attorney has provided written notice of representation. A notification was issued to a debt collector instructing them to refrain from contacting the clients (the debtors) except for statements of account, emphasizing the need to communicate through the attorney regarding the proposed deed in lieu or related documentation for returning timeshare interests. Mitchell Reed Sussman, an attorney licensed in California since 1977, represents timeshare owners primarily referred by exit companies, often without the owners knowing his involvement. These owners are usually unaware of the exit process being employed, which leads to communication issues as they relay messages through the exit companies. The exit companies instruct owners to stop all payments on their timeshares, a directive that Mr. Sussman has been linked to, as evidenced by an email exchange where he advised a client to send a certified letter to their timeshare company disputing the debt and asserting his representation. For clients who approach him directly, Sussman similarly instructs them to cease all payments related to their timeshare upon retention of his services. This cessation of payments, combined with sending a demand letter, initiates Sussman’s exit process. The outcomes of this process vary by developer; some may agree to release owners from their timeshares, while others, like Westgate, categorically reject Sussman's cancellation methods and refuse to negotiate. Despite knowing this, Sussman continues to inform owners that they have successfully exited their timeshares, sending them congratulatory letters that falsely confirm the termination of their timeshare interests based on the methods he employed. Communication regarding the timeshare should be directed to the office for intercession. Enclosed documents transfer ownership of the timeshare from Westgate Town Center, relieving the former owner of future fees. Retain copies of these documents. Mr. Sussman’s involvement concludes with this letter, and he will not represent the former owner in any ensuing legal issues, such as foreclosure or lawsuits from Westgate, only offering a refund for his fee if directly requested. Westgate counters Mr. Sussman’s actions, asserting that ownership and obligations remain unchanged from their perspective. The former owner is still liable for fees and at risk of foreclosure. Westgate has responded to Mr. Sussman's communications, stating that their review found no wrongdoing and their accounts are in good standing, thus denying his requests for contract release. Westgate has also rejected Mr. Sussman's resignation method, deeming it ineffective, and noted that deeds to associates are invalid due to non-compliance with their Right of First Refusal. Westgate has recorded corrective deeds and issued notices of non-compliance regarding Mr. Sussman’s actions, specifically rejecting any unauthorized deeds he recorded. They have informed him that the deeds lack legal effect and that the original owners remain responsible for all dues. In response, Mr. Sussman continues to assert the validity of his methods, disregarding Westgate's rejections. He dismisses maintenance fee statements as irrelevant and does not share them with the former owners or exit companies. Westgate's rejection of Mr. Sussman's resignation method prompts him to believe it is their responsibility to take legal action if they wish to contest what he considers a valid resignation. He asserts that regardless of Westgate’s acceptance, his resignation method stands as a valid exit. Regarding unilateral deeds that Westgate does not consent to, Mr. Sussman acknowledges their Right of First Refusal but continues to prepare these deeds, viewing Westgate's response as inadequate rejection. He believes that his offer to return the timeshare, through a "deed in lieu," signifies Westgate's waiver of its Right of First Refusal, allowing him to transfer property to associates without notification. Mr. Sussman disregards Westgate's recorded notices of non-acceptance, considering them ineffective. If Westgate records a deed returning the timeshare, he responds by disavowing the transfer, claiming the grantees do not intend to accept legal title, thereby inviting Westgate to seek legal clarification if disputed. He perceives Westgate's foreclosure actions as a victory, framing them as an agreement to take back the timeshare, and closes his file without further engagement, leaving owners to navigate the consequences. Despite Mr. Sussman’s dismissal of Westgate's responses, the company continues to pursue payments and contact owners during foreclosures, resulting in owners seeking refunds from the exit company, which then addresses the complications caused by Mr. Sussman. TET, after repeated issues with his methods—specifically regarding resignation, deed backs, and deeds to associates—terminated his services and instructed him to reverse deeds not acknowledged by the developer, leading to a cessation of files sent to him since early 2016. Mr. Sussman has not altered his approach and continues to work with other exit companies. Westgate Owners, referred to as the "Allegorical Prey," highlights the situation of timeshare owners seeking release from their obligations through Mr. Sussman's services. These owners fall into two categories: those referred by exit companies and those who retained Mr. Sussman directly. The narrative focuses on Kathryn Day, who inherited a Westgate timeshare and sought to exit it after her divorce. After Westgate refused to take back the timeshare, she and her ex-husband contracted with Newton Group Transfers for $4,151, believing they would sell the timeshare and relieve them of their responsibilities within three to six months. As time passed without resolution, Ms. Day became concerned about impending maintenance fees. Newton assured her they would handle the payment but ultimately failed to do so until four months later. Additionally, she was misled into signing a quitclaim deed that she thought would finalize the transfer of her timeshare back to Westgate. When Westgate notified her of overdue maintenance fees, Ms. Day discovered that Newton had not contacted Westgate about the transfer, leaving her still liable for fees. Despite her attempts to get answers from Newton, she received no satisfactory response. Eventually, she learned that the attorney associated with her quitclaim deed was merely hired by Mr. Sussman to record deeds without engaging Westgate. After further attempts to communicate with Newton and Mr. Sussman's law firm, Ms. Day encountered more confusion, leading to a lack of trust in the process. Ms. Day was instructed to contact Newton for assistance due to restrictions on direct communication with Mr. Sussman. However, Newton became unresponsive, prompting Ms. Day to reach out to Westgate on December 21, 2017. Westgate informed her that Mr. Sussman was representing her and that all communications should go through him. Unbeknownst to Ms. Day, a demand letter from Mr. Sussman's firm, dated August 7, 2017, accused her of fraud and misrepresentation related to a timeshare she did not purchase through a presentation, as she acquired it from her brother. Ms. Day was unaware of this letter until her deposition on December 10, 2018. To regain communication with Westgate, she had to formally request they disregard the representation letter. After doing so, she explained her predicament to Westgate, detailing her lack of control over her timeshare ownership and the looming maintenance fees. Westgate placed a hold on her account to negotiate a resolution and subsequently recorded a deed on January 12, 2018, transferring the timeshare back to her, effectively ending her ownership. In contrast, Karen Pfeil, who also sought to exit her timeshare with the help of Reed Hein, faced foreclosure due to missed payments. After signing an agreement to pay $16,516 to Reed Hein on May 15, 2015, she was misled about the timeline for cancellation. On July 17, 2015, Mr. Sussman's firm sent a demand letter regarding her timeshare, which she did not see. Despite her timely payments, Reed Hein provided only generic updates for almost three years. Eventually, on March 1, 2018, Mr. Sussman submitted a quitclaim deed to Westgate to return her timeshare, but this action did not prevent foreclosure. Westgate initiated foreclosure proceedings on March 5, 2018, citing non-payments since July 2015, and completed the foreclosure process by September 21, 2018. Following the foreclosure, Mr. Sussman sent a congratulatory letter to Ms. Pfeil, stating her timeshare was taken back as a result of their efforts and her refusal to pay. Ms. Pfeil was informed that the timeshare company agreed to take back her timeshare, releasing her from future liabilities, which she did not anticipate. She was not informed about the potential foreclosure implications or adverse credit consequences when she engaged Reed Hein's services, leading her to regret not being fully informed. Ultimately, she chose not to pursue a refund and attempted to forget the situation. In contrast, Diana Wenz, who purchased a Westgate timeshare in 2010, was contacted by JR Vacation Consultants in 2015, offering to help her exit the timeshare for a fee. Wenz paid $3,500, expecting a resolution within six months, but received no updates or resolution that year. In 2016, she received maintenance fees from Westgate and was advised by JR not to pay them, as it could imply continued interest in the timeshare. JR later sent a demand letter on her behalf claiming fraud, but Wenz had not authorized such claims. After a year of inaction, she requested a refund from JR due to the unmet timeline, which prompted JR to claim that the process was nearly complete. In January 2017, Wenz finally received a quitclaim deed. Ms. Wenz signed and notarized a deed to exit her timeshare, which she sent to JR, who informed her it needed to be recorded to finalize her ownership transfer. A month later, she received a congratulatory letter from Mr. Sussman confirming her exit and a recorded deed from JR, along with instructions to send it to Westgate. On February 23, 2017, she submitted the original deed and Mr. Sussman's letter to Westgate, leading her to believe she was no longer obligated to the timeshare. A year later, in March 2018, Westgate notified her of foreclosure proceedings, asserting that the property was still in her name. In an attempt to resolve the issue, she contacted Westgate, its law firm Greenspoon Marder, and Mr. Sussman’s office, but received limited assistance and was directed back to JR, who did not respond to her inquiries. Upon discovering Mr. Young's name on the quit claim deed and contacting him, she learned he had no involvement in her deed preparation. In April 2018, Greenspoon Marder informed her they intended to sue Mr. Sussman and sought her testimony. Ultimately, her timeshare reverted to her name, exposing her to foreclosure, while JR ceased communication and did not refund her payment. Ms. Wenz reflected that had JR not advised her to stop payments, she would have continued fulfilling her financial obligations. Alongside Ms. Day and Ms. Pfeil, Ms. Wenz's situation exemplified the experiences of owners referred to Mr. Sussman through exit companies, who believed they were escaping their timeshares but were instead misled. The narrative highlights Mr. Sussman's deceptive practices, including demand letters, halting payments, drafting deeds, and disappearing when issues arose. Additionally, Edwin Aviles, who purchased a Westgate timeshare in 2009, faced financial hardship and sought assistance from Mr. Sussman after discovering his services online, ultimately engaging him for a fee of $1,495 to relieve his timeshare obligations. The confidential Attorney/Client Retainer includes a refund policy allowing for a full refund if the client is not released from future maintenance or mortgage obligations under their timeshare contract. A link to a timeshare website is provided for further information on exiting timeshare agreements, including testimonials from satisfied clients. Mr. Sussman requested Mr. Aviles' timeshare contract and related documents, to which Mr. Aviles posed several questions regarding the legal implications of operating across state lines, past successes with Westgate Resort, the process timeline, title transfers, credit report implications, and whether the service included foreclosure litigation. Mr. Sussman encouraged a phone call for clarity, affirming that the $1,495 retainer fee is all-inclusive with no additional charges. He indicated the process would take 6-12 months due to the mortgage, during which Mr. Aviles should not make further payments. Mr. Aviles delayed hiring Mr. Sussman for further research but continued payments to Westgate. A year later, he retained Mr. Sussman for $1,500. On September 25, 2014, Mr. Sussman confirmed representation, explaining that properly managed timeshare negotiations prevent deficiency judgments against owners, and outlined his process of negotiating a release from contract obligations by contacting the timeshare company. Mr. Aviles was advised by Mr. Sussman to deed his timeshare back to Westgate, effectively releasing him from future obligations. This process would take time, but Sussman assured that Westgate would ultimately have no choice but to accept the return. On the following day, Sussman sent a demand letter to Westgate on Aviles' behalf, alleging fraud and misrepresentation, which surprised Aviles as he was not informed of any legal defenses to breach. Despite this, Aviles ceased all payments for the timeshare, following Sussman's advice to stop all payments, including maintenance fees. Sussman claimed that the Aviles would not be responsible for missed payments and would be able to "walk away" free and clear. In August 2015, Aviles received a deed transferring the timeshare back to Westgate, which he believed was consented to by Westgate. The deed was recorded on October 28, 2015, and Aviles received confirmation from Sussman’s office stating he was no longer responsible for future fees. Subsequently, Westgate sued the Aviles for breach of contract due to non-payment. On November 12, 2015, the attorney-client relationship was terminated, and Sussman refunded Aviles' retainer fee of $1,500, entering into a settlement agreement. This agreement acknowledged that while Sussman believed Aviles held no further financial obligations related to the timeshare, Aviles disputed this notion. The agreement mandated that the Aviles retain another attorney in Florida to represent them in the ongoing litigation with Westgate. Mr. Aviles hired the Aaronson law firm for a lawsuit that lasted a year and a half, concluding in March 2017 with a settlement of $710 and the transfer of his timeshare interest back to Westgate via a warranty deed in lieu of foreclosure. Since then, he has had no further dealings with Westgate. Similarly, Allan Coe sought assistance from Mr. Sussman to eliminate his Westgate timeshare, which he and his wife had purchased in 2007. Faced with burdensome maintenance fees, they attempted to sell the timeshare back to Westgate in 2010, but Westgate declined and provided contacts for the secondary market. After unsuccessful attempts to resell through multiple companies, the Coes engaged an exit company that took their money and disappeared. After reading about Mr. Sussman's law firm, the Coes contacted him and were charged $4,500 to handle five timeshares. During their consultation, they indicated they were not making payments on the timeshares. Mr. Sussman sent a demand letter to Westgate, which was rejected, stating that Westgate was not interested in a deed-back transaction. Despite this rejection, he had the Coes sign a deed transferring their timeshare interest back to Westgate and recorded it, later informing them they were no longer responsible for fees. Mr. Coe, believing he was relieved of the timeshare, had no complaints about Mr. Sussman's actions, deferring to his judgment. The narrative illustrates Mr. Sussman's consistent approach in representing clients, beginning with demand letters and non-payments, ultimately leading to recorded deeds back to Westgate. Most clients, except for Mr. Coe, experienced adverse outcomes from this process. Westgate has initiated a lawsuit against Mr. Sussman and his firm for tortious interference with contracts and business relations, as well as violations of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA). An amended complaint seeks an injunction and damages for 411 timeshare owners represented by Mr. Sussman, who denies any wrongdoing and asserts various privileges and defenses. His noncompliance with court orders led to sanctions under Rule 37(b)(2)(A)(i), which the court upheld. Consequently, it has been established that the defendants instructed Westgate Owners to stop paying maintenance fees and property taxes, as well as amounts owed to developers, without proper review of the owners' agreements or legal defenses. Sussman Law staff reinforced this directive in subsequent communications. The defendants solicited Florida attorneys to record deeds that either purportedly transferred timeshare interests back to the plaintiffs without their knowledge or to third parties who did not fulfill ownership obligations. They falsely claimed to these attorneys that the Timeshare Corporations accepted the return of ownership, despite having no acknowledgment from the plaintiffs and failing to provide the consideration mentioned in the deeds. Towards the end of discovery, Westgate sought a preliminary injunction, initially opposed by Mr. Sussman, who later agreed to terms preventing him from various actions, including notifying Westgate of resigning owners or executing deeds without consent. He acknowledged that if the motion had proceeded, the plaintiffs could prove the necessary elements for injunctive relief. The court subsequently entered a preliminary injunction, and both parties filed cross-motions for summary judgment. Westgate is pursuing partial summary judgment related to its claims of tortious interference with contracts and violations of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA). Alternatively, Westgate requests the Court to establish certain facts for trial. In contrast, Mr. Sussman contends that the evidence supports summary judgment in his favor on all issues. The legal standards for summary judgment require the movant to demonstrate the absence of genuine disputes regarding material facts and entitlement to judgment as a matter of law, as outlined in Federal Rule of Civil Procedure 56(a). If the movant bears the burden of proof at trial, they must provide credible evidence showing no reasonable jury could rule in favor of the nonmoving party. Conversely, if the nonmovant bears the burden, the movant can either highlight the absence of supporting evidence or present affirmative evidence that the nonmovant cannot prove their case. The burden then shifts to the nonmovant to provide affirmative evidence indicating a genuine issue of material fact exists. A dispute is genuine if reasonable jury could return a verdict for the nonmoving party. The court must view evidence in the light most favorable to the nonmovant and credit their version of the facts unless it is blatantly contradicted by the record. The Court will now assess whether Mr. Sussman's actions constitute tortious interference with Westgate's contracts and involve deceptive practices. Westgate asserts that Mr. Sussman’s methods of canceling timeshares interfere with its contracts with owners, identifying two sources of this interference. Owners have been directed by Mr. Sussman to immediately stop fulfilling their financial obligations related to their timeshares, including maintenance fees and property taxes. This action is part of a cancellation process that Westgate alleges constitutes intentional interference with contractual relations. The legal framework for tortious interference in Florida requires the existence of a contract, the defendant’s knowledge of the contract, intentional procurement of the contract's breach, absence of justification, and resulting damages. The first two elements are undisputed, focusing the discussion on the latter aspects. Westgate claims Mr. Sussman's guidance to owners to cease payments qualifies as intentional interference, as it coerces them to breach their contracts. This claim is supported by an admitted fact that the defendants instructed owners to stop payments without any prior review of their contracts or awareness of potential legal defenses. Mr. Sussman argues that he should not be held responsible for the actions of an exit company that referred some owners to him, asserting that he never communicated directly with those clients. The determination of whether Mr. Sussman’s actions constitute tortious interference hinges on this admitted fact regarding the majority of owners he represents. The record indicates that the admitted fact concerning Mr. Sussman applies to all Westgate owners he represented, regardless of whether they approached him directly or through exit company referrals. Mr. Sussman's refusal to provide documents related to his communications with exit companies hindered Westgate's ability to investigate whether he instructed owners to stop making payments. Consequently, the court accepted this fact against him. Evidence suggests that Mr. Sussman directed exit company representatives to instruct owners to cease payments, despite not communicating directly with them. His ongoing relationship with these exit companies is characterized by repetitive interactions, implying that he doesn't need to reiterate instructions, as they are already familiar with his directives. Mr. Sussman's influence in the early development of TET, which sought his expertise, is also significant. He managed TET's files and imparted knowledge to them, which has led to TET becoming a leading company in the field. His involvement with TET's approach to advising clients to stop payments is likened to creating a problematic entity from his original practices, and he cannot evade responsibility for the influence he has had over TET's operations. The court will now assess whether Mr. Sussman's actions were justified or privileged. He contends that his directives not to pay are privileged due to his role as the exit company's agent or as the retained client's attorney. However, Florida law allows for personal liability of corporate agents for tortious acts committed within their employment scope. Furthermore, attorneys may be held accountable for advising clients to breach contracts if their actions involve wrongful means, such as false or fraudulent representations. Fraudulent misrepresentations are deemed wrongful means of interference, making such interference improper, as established in various cases and the Restatement (Second) of Torts. Specifically, while fraud is not a necessary element in every case of intentional interference, its presence influences the outcome. Mr. Sussman's instructions to clients to cease payments on their timeshare contracts, under the guise of facilitating an exit from ownership, lack privilege due to the fraudulent context in which they are made. A representation is considered fraudulent if the speaker knows it is false based on the intended understanding of the recipient. Westgate timeshare owners, seeking legitimate exit strategies, are misled by Mr. Sussman's assurances that stopping payments will lead to relief from ownership. However, the reality is that halting payments does not initiate a valid exit process; rather, it prompts Westgate to enforce contracts, issuing late payment notices and commencing foreclosure proceedings. Mr. Sussman is aware of these outcomes but continues to advise clients in a manner he knows will breach their agreements. He attempts to evade liability by arguing that foreclosure, resulting from non-payment, ultimately achieves the exit owners seek; however, this rationale does not justify the wrongful means he employs. The key consideration is not whether the harm was justified, but rather the manner in which it was caused. Foreclosure is the typical outcome for owners who stop payments, and Westgate actively seeks monetary judgments against them, contradicting Mr. Sussman's claims. Furthermore, Westgate does not recognize or accept Mr. Sussman's methods, leaving owners uninformed about the true nature of their contractual obligations. Westgate does not provide deeds in lieu of foreclosure to owners represented by Mr. Sussman, who lacks control over Westgate's foreclosure decisions. Consequently, Sussman's advice to owners to stop payments is deemed unjustified, fraudulent, and wrongful. He is personally liable for these statements and does not have the privileges of an agent for exit companies or as an attorney for clients. His defenses based on agency/attorney privilege and justification are rejected. Additionally, Sussman's claims that his actions are protected by Florida's litigation privilege and Noerr-Pennington immunity are dismissed. Florida's litigation privilege grants absolute immunity for acts during judicial proceedings only when related to the proceeding; however, it does not apply to pre-suit communications such as demand letters. The court is not willing to extend this privilege to Sussman’s pre-suit communications, especially since he acknowledges that his timeshare cancellation agreements do not involve litigation. Thus, Sussman's assertions regarding the applicability of the litigation privilege are incorrect. Mr. Sussman's retainer agreements explicitly state that he will not represent Westgate owners in lawsuits, as he aims to avoid litigation entirely. His numerous files are handled in a non-litigation manner, and if a lawsuit arises, he must refund the owners' fees per his retainer terms. His actions, particularly in the case of the Aviles, demonstrate a clear attempt to evade litigation; he refunded their fees, facilitated a settlement agreement, and advised them to seek legal representation. Consequently, the litigation privilege does not apply to him, and his assertion of Noerr-Pennington immunity, which protects those engaged in good faith litigation and related activities, is rejected. His directives for owners to cease payments to Westgate do not align with legitimate petitioning of the government but rather indicate an effort to avoid judicial involvement. The court concludes that Mr. Sussman unjustifiably interfered with Westgate's contracts by instructing owners to stop payments. In addressing causation, Mr. Sussman argues that Westgate's owners were likely to breach and that his interference did not directly cause Westgate's damages. This latter point will be evaluated in the context of damages in subsequent analysis. The excerpt addresses the legal concept of causation concerning contract interference, emphasizing the importance of predisposition. It cites relevant case law, establishing that a plaintiff must demonstrate the defendant's specific intent to induce a breach of contract and that no liability arises unless it is shown that the defendant intended to cause the breach. If a contracting party is already inclined to breach, the actions of a third party cannot be viewed as inducing that breach. Mr. Sussman argues that the owners he represents are predisposed to breach their contracts by seeking timeshare cancellation services. However, this assertion is critiqued as misguided; predisposition implies that the breach is due to the owner's intent rather than any external persuasion. The record indicates that the owners engaged with Mr. Sussman and the exit services under the belief they were pursuing lawful cancellations, not that they intended to default on their payments. Testimonies from various owners illustrate their genuine concern about financial repercussions and their intent to fulfill obligations until led to believe otherwise by the cancellation services. For instance, Ms. Day expressed anxiety about her maintenance fees despite seeking assistance, while Ms. Pfeil and Ms. Wenz both demonstrate a willingness to maintain their financial commitments until misled about the cancellation process. Thus, the evidence does not support Mr. Sussman's claim of the owners' predisposition to breach their contracts. The document outlines the conduct of timeshare owners, specifically Mr. Aviles and Mr. Coe, in relation to their contracts with Westgate. Mr. Aviles initially sought cancellation services due to financial hardship, engaged with Mr. Sussman, and was advised to stop payments while retaining him. He ceased payments on September 14 and officially retained Mr. Sussman on September 25, who assured him he would not owe future payments. The Coes, facing rising maintenance fees since 2010, attempted various solutions, including contacting Westgate and hiring an exit company, before ultimately seeking Mr. Sussman's services to negotiate their timeshare obligations. The Court finds that neither owner demonstrated specific intent to breach their contracts prior to engaging Mr. Sussman. Their actions indicate a genuine effort to find a legitimate exit from their timeshare obligations, rather than a predisposition to breach. The Court concludes that Mr. Sussman's guidance to stop payments constitutes intentional, unjustified, and non-privileged interference that induced the owners to breach their contracts with Westgate. The final element of damages will be addressed in relation to Westgate's additional claims concerning Mr. Sussman's practices. Mr. Sussman's resignation and deeding methods have been cited by Westgate as intentional interference with contracts, as they lead timeshare owners to believe they can stop payments due to relinquishment of their timeshares. Mr. Sussman counters that these practices are neither fraudulent nor deceptive, addressing Westgate's claim under the Florida Deceptive and Unfair Trade Practices Act (FDUPTA). The Court finds that the first two elements of tortious interference are satisfied since Mr. Sussman acknowledges owners have contractual obligations to pay and that any transfer must adhere to Westgate's Right of First Refusal. The Court also concludes that Mr. Sussman's actions constitute intentional interference because they do not align with Westgate's approved exit process. Regarding the resignation method, Mr. Sussman utilizes a modified form letter to notify Westgate of an owner's resignation and intention to execute a deed in lieu of foreclosure, implying that if Westgate does not respond within ten days, the resignation is effective. However, Westgate does not accept these notices, and Mr. Sussman admits they are ineffective for deed-based timeshares. Although he has sent congratulatory letters to owners based on these notices, there is no evidence that any owners stopped payments due to this method. Consequently, the Court cannot establish a causal link between the resignation method and the alleged breach of contract, which weakens Westgate's tortious interference claim. Therefore, while Westgate's summary judgment for this claim is not granted, it retains the option to pursue the matter at trial regarding causation and damages. The excerpt also hints at a second method related to deeds to associates, which Westgate claims further interferes with their contracts. Owners may mistakenly believe they are no longer obligated to make payments due to the way deeds are handled, raising concerns about their ongoing payment obligations. Mr. Sussman asserts that he informs associates of these obligations, yet the evidence does not clarify whether owners actually cease payments upon receiving deeds. The court finds insufficient evidence to link the actions of Mr. Sussman with owners breaching their payment contracts, denying Westgate's motion for summary judgment on this issue and similarly denying Mr. Sussman's motion due to unresolved factual questions regarding causation. Additionally, Westgate alleges that Mr. Sussman's actions interfere with its Right of First Refusal. Mr. Sussman contends that his letters comply with this right, which allows Westgate to match offers from third parties when an owner wishes to transfer property. However, the court clarifies that the Right of First Refusal applies only when an owner has a bona fide offer ready, not in situations where Mr. Sussman demands Westgate take back property without a clear transfer agreement. The court rejects Mr. Sussman's interpretation, stating that he does not notify Westgate before transferring timeshares to third parties, contradicting the requirements of the Right of First Refusal. Despite Westgate's attempts to address these transfers after the fact, Mr. Sussman fails to ensure compliance from the owners he represents. The document outlines the legal dispute between Westgate and Mr. Sussman regarding interference with the Right of First Refusal and the validity of deeds back to Westgate. It asserts that Mr. Sussman's actions constitute intentional, unjustified, and non-privileged interference with the owners' obligations. However, Westgate has not sufficiently proven that Mr. Sussman's alleged interference led owners to believe they were no longer bound to Westgate, resulting in the denial of Westgate's motion for summary judgment. Regarding the deeds back, Westgate claims these actions disrupt its contractual rights, pointing to its consistent rejection of such deeds through letters and recorded notices. Mr. Sussman argues that acceptance of a deed can be implied through conduct, but his own testimony contradicts this, revealing an awareness of Westgate's refusal to cooperate. The Court finds that Mr. Sussman's practice of deed backs is unjustified and constitutes intentional interference, as owners testified their understanding was that they had exited their timeshare obligations. Additionally, testimonies indicate confusion among owners when they were later informed of outstanding payments and potential foreclosure by Westgate. Mr. Sussman's actions in recording and delivering deed backs to property owners misled them into believing they had exited their obligations to Westgate, thereby causing them to stop making payments. This practice, combined with congratulatory letters indicating that further collection attempts would be invalid, directly contributed to the owners' continued breach of payment obligations. The Court found that Westgate successfully established the first four elements and causation for its tortious interference claim based on Mr. Sussman's instructions to cease payments and his deed back method. However, causation related to the resignation and deed to associate method was not established. Regarding damages, Westgate claimed to have suffered a loss of $3,844,082 due to Mr. Sussman's interference, supported by an expert report from Steven Wolf. This figure was derived from delinquent accounts that Westgate provided, segmented into groups based on their delinquency status relative to Mr. Sussman's involvement. The Court expressed skepticism about the causal connection between Mr. Sussman’s actions and the total damages claimed, particularly concerning accounts delinquent prior to his involvement. The Court noted gaps in the evidence, such as the significance of the 90-day cutoff for delinquency and the specific methods used by Mr. Sussman for each of the 411 owners from whom damages are sought. These uncertainties prevent a clear determination of the extent of damages caused by Mr. Sussman's actions. Payments ceased at the onset of Mr. Sussman's representation or that of an exit company, potentially due to an initial directive to halt payments. However, the ongoing non-payments by owners later in the process are not necessarily linked to this directive, as the method and evidence of causation remain questionable. Mr. Wolf's claims for damages, based on information from Westgate and Greenspoon Marder, lack sufficient "but for" causation, leading to the denial of summary judgment motions for both Westgate and Mr. Sussman. Key issues for trial include: 1) whether Mr. Sussman's resignation and related actions caused the owners to stop payments, and the damages from that interference; and 2) the damages from Mr. Sussman's instructions to cease payments and the associated deed transfers. The court grants Westgate's summary judgment on the first four elements of tortious interference concerning Mr. Sussman's actions but denies it in other respects, as well as denying Mr. Sussman’s motion. Regarding Westgate's FDUTPA claim, which prohibits unfair or deceptive acts in trade, the claim has three required elements: a deceptive act, causation, and actual damages. To demonstrate deception, it must be shown that a reasonable consumer could be misled. Westgate argues that Mr. Sussman's business practices are deceptive, premised on the false premise that evading contractual obligations allows for legal negotiations regarding timeshares. When these strategies fail, Mr. Sussman proposes alternative solutions, including resignations and deeds to associates, often involving unwitting Florida attorneys who record these transfers without proper consent from Westgate. The Court finds that Mr. Sussman’s business practices are deceptive, meeting the first element of Westgate's claim under the Florida Deceptive and Unfair Trade Practices Act (FDUTPA). His operations exploit timeshare owners, promising painless exit solutions while failing to disclose that Westgate will reject these solutions and may pursue foreclosure or lawsuits for unpaid obligations. Mr. Sussman avoids accountability by operating through exit companies, which shield him from the consequences of unsuccessful methods. He misleads owners into believing they can escape contractual obligations, instructing them to stop payments based on false assurances of effective exits, regardless of the method used. The Court acknowledges that while Westgate has demonstrated the deceptive nature of Mr. Sussman's practices, it has not yet proven actual harm or injury to the consumers, which is a necessary element for the FDUTPA claim. The Court expresses skepticism regarding the valuation of Westgate's damages presented by Mr. Wolf, leading to the conclusion that causation and damages must be addressed at trial. Motions from both parties are denied, and any potential remedy for injunctive relief will depend on the trial's outcomes. The Weasel has failed to fulfill his promise, leaving the Prey trapped and the Trapper seeking a bounty, pending jury evaluation. The Court's ruling includes the following key points: 1. **Plaintiffs' Motion for Summary Judgment** is partially granted: - The Court grants it regarding certain elements of the tortious interference claim (Count I). - The Court also grants it concerning deceptive trade practices under the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) claim (Count III). - All other aspects of the Plaintiffs' Motion are denied. 2. **Defendants' Motion for Final Summary Judgment** is also partially granted: - The Court grants it in accordance with the parties' joint stipulation regarding Count II of the Amended Complaint. - All other claims in the Defendants' Motion are denied. 3. The Clerk is instructed to enter judgment in favor of the Defendants concerning Count II. 4. Remaining issues will proceed to trial. The Court emphasized the importance of evaluating facts in favor of the non-moving party during summary judgment considerations and acknowledged the full record, including evidence brought forth after the discovery period. Notably, Westgate had previously filed and then dismissed an in rem foreclosure action. Additionally, undisputed evidence was cited regarding Mr. Sussman’s instructions to clients regarding payment to exit companies, contradicting his claims that he never advised clients not to pay. Edgar Bergen, a notable ventriloquist, gained fame alongside his puppet Charlie McCarthy, co-hosting the Edgar Bergen-Charlie McCarthy Show from 1937 to 1957. The court addresses Mr. Sussman's defenses, which hinge on whether he acted wrongfully. It distinguishes his claims from typical agency privileges in tortious interference, noting that an agent cannot be liable for interfering with a contract if acting in the principal's best interest. However, Sussman's assertion that he is an agent of the exit company, which in turn represents the Westgate owners, complicates matters, as he attempts to argue he cannot be liable for the exit company's directive to halt payments. His prior position suggested he viewed himself as an agent of an agent, reflecting a complex tripartite relationship. The court emphasizes that even if an agent claims privilege, they may be considered a third party if acting outside their agency's scope or not in the principal's best interests. The court also cites Florida's reliance on the Restatement (Third) and (Second) of Torts for professional obligations and intentional interference claims. Sussman suggests that his justification applies only to those owners who directly retain him, claiming an attorney-client relationship, but the court examines this defense as it pertains to all owners, considering both his roles as an exit company agent and retained attorney. During deposition, Sussman indicated he informs owners that Westgate does not accept payments and warns them of foreclosure risks and litigation. Mr. Aviles was informed about the possibility of foreclosure, unlike Mr. Coe. Mr. Sussman asserts a defense in his summary judgment motion, believing that Westgate's tortious interference claim includes his demand letters. Westgate's claim is divided into two components: 1) Mr. Sussman advising owners to stop payments; and 2) his resignation and deeding methods. Sussman's emphasis on demand letters is deemed irrelevant to the tortious interference claim. The Court rejects Sussman's defenses based on litigation privilege and Noerr-Pennington immunity regarding both his non-payment directions and form letters. While unpublished decisions are not binding, they can serve as persuasive authority. The Court references a case where litigation privilege did not apply to mortgage reinstatement letters and concludes that it similarly does not extend to Sussman's pre-suit letters. As Sussman's Noerr-Pennington defense fails at the initial stage, the Court does not consider Westgate's "sham exception" argument. The payments relevant to the second tortious interference claim are identified as those owed after Sussman informed owners, via letter, that they were no longer responsible for their timeshares due to his resignation and deeding methods. The Court categorizes all missed payments during Sussman's representation as part of Westgate's "Cessation of Payments" claim, which is significant for determining damages. The Court cites a resignation notice from a related case, noting the absence of a direct record of such a notice from Sussman. Despite Westgate's claims of criminal activity regarding Sussman's methods, the Court dismisses these assertions, emphasizing the principle that opinions may vary, but facts do not. Mr. Sussman asserts Noerr-Pennington immunity as an affirmative defense for his deed back practices, countering Westgate's argument that his demand letters are a "sham" and therefore not protected. He contends that recording deeds does not qualify as petitioning the government, which is necessary for Noerr-Pennington protection. Additionally, Mr. Sussman refers to a deed back signed by Ms. Pfeil, who was foreclosed upon, which led him to send a congratulatory letter. This situation partially supports Westgate's request to establish certain facts for trial, particularly regarding Mr. Sussman's alleged intentional interference, but the court will not fully adopt Westgate's characterization of the facts. The court finds no merit in Westgate's claims related to Mr. Sussman's website advertisements. Mr. Sussman also argues that Westgate's claim under Florida's Deceptive and Unfair Trade Practices Act (FDUTPA) is invalid for several reasons: he does not engage in trade or commerce, did not solicit, his actions harm owners rather than Westgate, many owners are out-of-state, and the matter involves out-of-state entities. However, the court previously dismissed these arguments during Mr. Sussman's motion to dismiss and reaffirms their lack of merit. The court emphasizes that Mr. Sussman operates a law firm providing cancellation services, which qualifies as "trade or commerce" under FDUTPA. Therefore, Westgate is entitled to bring the claim, and the presence of out-of-state owners and entities does not exempt it from FDUTPA's jurisdiction.