IN THE CIRCUIT COURT OF THE 11 th JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA MIAMI REAL ESTATE INVEST LLC, a Florida Real Estate Company, Plaintiff, GENERAL JURISDICTION CASE NO.: 2015-008546-CA-01 (15) v. BEINI XU, individually, FORTUNE DEVELOPMENT SALES CORP., a Florida corporation, AMERICAN DA TANG GROUP CO. LTD., a foreign corporation, THIRTY-FIRST STREET PROPERTY OWNER, LLC, a Florida Limited Liability Company, and AMERICAN DA TANG REALTY, INC., a foreign corporation Defendants. / FINAL JUDGMENT THIS MATTER, having come before the Court for Trial on May 31, 2017, June 1, 2017 and June 8, 2017 and the Court having heard testimony from the witnesses at trial, reviewed the record evidence and being fully advised in the premises, hereby makes the following findings of fact and conclusions of law as follows: 1. Plaintiff, MIAMI REAL ESTATE INVEST, LLC ( Plaintiff ) sued Defendants BEINI XU, FORTUNE DEVELOPMENT SALES CORP, AMERICAN DA TANG GROUP CO. LTD., THIRTY FIRST STREET PROPERTY OWNER, LLC and AMERICAN DA TANG REALTY, INC. seeking the buyer s broker commissions in the amount of $1,041,504.00 generated from the purchase of sixteen condominium units at the One Paraiso development (the One Paraiso Transaction ) in 2014. The buyers for the One Paraiso Transaction was a Chinese company named
China City Construction Company ( CCCC ) through sixteen limited liability companies formed for the purpose of purchasing the 16 condominium units. 2. Miami Real Estate Invest, LLC ( MREI or Plaintiff ) is a real estate brokerage company operating in Miami, Florida, under the broker license of its principal and owner, David Landau. 3. Defendant Beini Xu ( Xu ) was a Florida licensed real estate sales agent working as an independent contractor with Plaintiff at all material times. Plaintiff and Xu entered into an Independent Contractor s Agreement dated March 14, 2013 (the Contract ). 4. Fortune Development Sales Corp. ( Fortune ) is the listing agent for the owner/developer/seller of the One Paraiso development at all material times. 5. American Da Tang Group Co. Ltd. ( ADTG ) is a New York company involved in investment and real estate development. Its principal and owner is Dr. Shanjie Li ( Dr. Li ). 6. Thirty First Street Property Owner, LLC ( Thirty First Street ) is the developer/seller of the One Paraiso development, under The Related Group. 7. American Da Tang Realty Inc. ( Realty, Inc. ) is a New York real estate brokerage company operating under the broker license of David Ju. Realty Inc. was incorporated in December 2013 and was licensed as a real estate brokerage company in April 2014. 8. The Operative Complaint plead six different causes of action against the defendants. (1) Count I Breach of Restrictive Covenant as to Defendant Beini Xu; (2) Count II - Injunctive Relief as to Defendant Beini Xu; (3) Count III Tortious Interference as to Defendants American Da Tang Group Co. Ltd. and American Da Tang Realty, Inc.; (4) Count IV Conspiracy to Circumvent as to Defendants Beini Xu, Fortune Development Sales Corp, American Da Tang Group Co. Ltd. and American Da Tang Realty, Inc.; (5) Count V Procuring Cause as to
Defendants Fortune Development Sales Corp. and Thirty First Street Property Owner, LLC and (6) Declaratory Judgment as to American Da Tang Realty, Inc. On May 16, 2016, Plaintiff voluntarily dismissed Counts II, IV and VI of the Complaint. 9. On March 1, 2016, Defendant Xu filed a Counterclaim against Plaintiff pleading counts for (1) Anticipatory Breach of Contract and (2) Unjust Enrichment. Defendant Xu alleges that in the event that Plaintiff is found to be the procuring cause of the One Paraiso Transaction through her work, then she is entitled to be paid a commission in accordance with her Contract with Miami Real Estate Invest LLC. 10. On July 26, 2016 Plaintiff then entered into a Stipulation for Dismissal (the Stipulation ) as to Fortune and Thirty-First Street. The Stipulation provided that the Procuring Cause count would remain viable for trial and the Court entered an order approving the Stipulation. However, the Stipulation was not signed by Defendants Xu, ADTG or Realty, Inc. 11. Therefore, the only counts remaining for trial were Counts I, III, V of the Complaint and Counts I and II of the Counterclaim. Summary of Pertinent Background 12. A summary of the pertinent facts in this action is necessary. Xu met Dr. Li in late 2013 in Miami. Xu informed Dr. Li that she was a real estate agent and he became interested in learning about the Miami real estate market. Xu introduced Dr. Li to her broker, Landau, and they showed him some condominium developments, including Parasio Bay. Fortune was the seller s listing agent and the parties met with Carmen Casadella ( Casadella ) who showed them the development. Dr. Li purchased two condominium units at Paraiso Bay. 13. Dr. Li and Landau reached an agreement for their companies to enter into a Cooperation Agreement whereby they agreed to mutually refer high end clients to each other for
real estate deals in Miami, Florida and Long Island, New York and share the commission generated from these transactions 50%/50%. Pursuant to this Agreement, MREI paid 50% of the commissions it earned as the broker for Dr. Li s condominium purchases at Paraiso Bay to Realty Inc. Landau s partner at the time, Wenjun Lin, as well as Xu, spoke Mandarin and translated for Dr. Li who speaks only a little English. 14. Dr. Li and Landau attempted to work together on other deals, including an agreement with another developer in South Florida, ISG. The parties did not enter into an agreement with ISG or consummate any other deals together. Dr. Li also opened a medical concierge club, named American Da Tang Longevity Club in Miami, and Landau was involved in that project for a time. On June 5, 2014 however, Landau sent correspondence to Dr. Li terminating the Cooperation Agreement. From that time forward, neither party had an obligation to refer their clients to the other. 15. Dr. Li and Xu developed a working relationship where Xu would assist Dr. Li when he was in Miami by driving him around, running errands and translating for him. Dr. Li eventually hired Xu as the Regional Manager for Longevity Club beginning July 2014. As the Regional Manager, Xu was responsible for providing concierge services to the high end Chinese clients including translating, scheduling their appointments and driving them to the appointments, scheduling entertainment for them and generally ensuring that their needs were met. Landau was aware that Xu was working with Dr. Li and assisting him and did not object to this. 16. In July 2014, Dr. Li and David Ju met with members of CCCC in New York to show them real estate projects for investment purposes. Dr. Li and Ju also recommended that CCCC come to Miami to look at real estate projects there. CCCC agreed and came to Miami with Dr. Li in July 2014 for this purpose.
17. In July 2014, Xu contacted Casadella to schedule an appointment for Dr. Li and his clients to meet with her to see the properties she had for sale. Dr. Li and his clients, CCCC, came to Miami were scheduled to meet with Casadella on July 12, 2014. Xu accompanied the clients to the appointment with Casadella and signed the Client Intake Sheet for Dr. Li. Dr. Li did not attend the appointment with Casadella because he injured his foot earlier that day. On August 19, 2014, CCCC signed Purchase Agreements for 16 units at the One Paraiso development. 18. In or about August 2014, Landau learned that Xu was involved in taking Chinese investors to purchase several condominiums at One Paraiso with Dr. Li. Landau did not advise Xu that he had learned she was involved in the One Paraiso Transaction. Xu continued working for Plaintiff until she resigned in January 2015. Thereafter, Plaintiff filed suit in April 2015. Count I Breach of Contract 19. Defendants moved for involuntary dismissal as to Count I Breach of Contract as to Beini Xu - which was denied. Accordingly, the Court has considered all of the evidence presented at trial in ruling on this count. 20. In order to prevail on a cause of action for breach of contract, the Plaintiff must prove the following elements: (1) the existence of a valid contract; (2) a material breach of the contract and (3) damages caused by the material breach. Murciano v. Garcia, 958 So. 2d 423 (Fla. 3DCA 2007). The Plaintiff must demonstrate that the breach was a substantial factor in causing damage in order to recover. Stensby v. Effjohn Oy Ab, 806 So. 2d 542, 544 (Fla. 3DCA 2001) (holding that Plaintiff s failure to prove that the breach of contract caused him any harm mandates the failure of his case). 21. Plaintiff alleges that Xu breached the non-compete provision of her Contract when she agreed to assist ADTG and Realty Inc. in procuring the buyers for the One Paraiso Transaction
and negotiating the deal without disclosing her involvement in the transaction to Plaintiff. Plaintiff produced numerous email correspondences between Xu and Casadella, wherein Xu appears to be communicating with Casadella on behalf of the buyers in order to negotiate the purchase prices, condominium unit numbers, timing for deposit payments, escrow account information, broker information and other issues relevant to a real estate sale. Plaintiff argues that Xu was acting as a real estate sales agent for the buyers at all relevant times, but did not notify the broker that she was contracted to work for, Miami Real Estate Invest, nor did she ensure that Plaintiff was listed as the broker of record for the buyers on any of the relevant contractual documents. 22. Xu testified that she was not working as a real estate sales agent for the buyers, CCCC, at any time during this Transaction. Xu testified that she worked as an assistant and translator to Dr. Li, who hired her as the Regional Manager for American Longevity Club in July 2014. Neither Dr. Li nor the principals of CCCC speak English; they speak Mandarin Chinese. In her role as the Regional Manager, Xu testified that she was the translator for any clients, as well as Dr. Li, in all areas not limited to real estate. For instance, Xu testified that she accompanied CCCC to medical appointments at Elite House where she translated for them with the medical staff; she accompanied them to dinner and lunches where she translated for them with the staff; she translated for them at the hotel where they stayed also. Xu testified that she also worked as the assistant for Dr. Li who used her to schedule appointments for himself and clients, to arrange transportation for him and any clients; to run errands for him and clients; to schedule and provide entertainment for clients such as booking a yacht ride. Xu testified that she never disclosed to anyone from CCCC that she was a licensed real estate agent seeking to represent them in the One Paraiso Tranaction and she was never authorized by CCCC to be their real estate agent for this Transaction.
23. The evidence presented at trial demonstrated that Xu begin assisting Dr. Li as a translator, driver and assistant prior to the One Paraiso Transaction. The testimony from Xu and Dr. Li was that she began assisting Dr. Li whenever he was in Miami, even when Xu was not actively involved in showing him real estate properties. The evidence presented showed that Landau was aware that Xu was assisting Dr. Li with matters outside of real estate and made no objection. Xu s Contract with Plaintiff allowed her to perform other work while she was under contract with Plaintiff, provided that the work did not cause her to compete with Plaintiff. 24. Xu testified that her email correspondence to Casadella and to CCCC was done at the request and instruction of Dr. Li. She explained that he would ask her to get information from Casadella so she would send an email to Casadella and then report the information to Dr. Li. She would then communicate any further instructions from Dr. Li to Carmen. Xu, Dr. Li and David Ju all testified that Xu was not working in the capacity of a real estate agent for the One Paraiso Transaction. Xu, Dr. Li and David Ju all testified that in the Chinese culture, Xu was considered to be very junior to the principals of CCCC and she was not someone that they would consult with or listen to about their business and investment decisions. Xu was given the administrative task of providing and obtaining information about the One Paraiso Transaction while Dr. Li and David Ju worked with CCCC directly and convinced them to purchase the properties. 25. The Court notes that before CCCC met with Casadella on July 12, 2014 to see the One Paraiso development, Xu wrote to Casadella and advised her to consider Xu only as the assistant whenever it concerns American Da Tang. Xu testified that she wanted Casadella to understand from the beginning that she was not working in the capacity of a real estate agent for this Transaction. Casadella testified that she understood that Xu was working as a translator for the buyers and Dr. Li. No evidence was offered where Xu was identified as an authorized sales
agent for the buyers in any of the correspondence or contracts for the One Paraiso Transaction, other than the Plaintiff s testimony. The Court finds that the greater weight of the evidence presented at trial does not establish that XU was acting in the capacity of a real estate agent for the One Paraiso Transaction or that she was authorized by CCCC to represent them as their real estate agent for the One Paraiso Transaction. 26. The Vice President of CCCC, Haibo Pan, was deposed by the parties and his testimony was designated for trial. The testimony of Mr. Pan corroborates the Defendants testimony that Xu was only serving as their translator and assistant. Mr. Pan testified that he only thought that Xu was a translator and that she worked for Dr. Li. He was not aware that she was a real estate agent. Mr. Pan testified that he never discussed the One Paraiso Transaction with Xu, she never advised him on the One Paraiso Transaction and that CCCC authorized American Da Tang to negotiate the deal for One Paraiso on their behalf. Mr. Pan testified that he does not know David Landau or the company, Miami Real Estate Invest, LLC. 27. Plaintiff argues that the emails and communications from Xu to Casadella concerning One Paraiso were the same as the emails and communications that she did when she was the real estate agent for Dr. Li for the purchase of two condominium units at Paraiso Bay in November 2013. However, the testimony at trial was that Dr. Li knew that Xu was a real estate agent before she and Landau began showing him properties and he agreed to have Miami Real Estate Invest as his broker for this condominium purchase. Xu was paid a commission for the November 2013 purchase. No evidence was presented that Xu was paid a commission for the One Paraiso Transaction. 28. Defendants point to 475.278 (3). Fla. Stat., which mandates that an agent or broker must disclose that they are an agent or broker to the client before showing them property. No
evidence was presented that CCCC knew that Xu was a real estate agent and authorized her to represent them for the One Paraiso Transaction. In fact, the evidence at trial was to the contrary; CCCC did not know that Xu was a real estate agent and did not authorize her to represent them in the One Paraiso Transaction. 29. Plaintiff argues that Xu s breach of contract prevented them from participating in the One Paraiso Transaction as the broker for the buyers, thereby causing it damages in the amount of the commissions generated by the Transaction. However, the evidence at trial does not show that even if Xu breached her contract, that breach prevented Plaintiff from representing the buyers. The evidence at trial showed that CCCC was Dr. Li s client and that Dr. Li and David Ju introduced them to the One Paraiso development. CCCC came to Miami from New York with Dr. Li to visit the One Paraiso Transaction. No evidence was presented that CCCC came to see One Paraiso because of Xu. Accordingly, even if Xu had informed Plaintiff about CCCC s interest in One Paraiso, no competent evidence was presented that CCCC would have opted to work with Plaintiff instead of Dr. Li and Realty, Inc. with whom they had an established relationship. Further, the evidence at trial was clear that Plaintiff had terminated its Cooperation Agreement with ADTG before CCCC came to Miami to see One Paraiso. Accordingly, Dr. Li was not obligated to refer CCCC to Plaintiff for the One Paraiso Transaction. 30. Defendants also assert that Plaintiff waived any alleged breach by Xu when it failed to notify her that she was in breach of the Contract after Landau found out about the One Paraiso Transaction. Landau testified that he found out about the Transaction in August or September 2014, learned that Xu was involved in the Transaction but did not confront her or advise her that she was in breach. The evidence presented at trial showed that in October 2014, Landau contacted Xu in order to arrange a meeting with Dr. Li and to send him an invitation to an event,
demonstrating that Landau was aware of Xu s continued involvement with Dr. Li and did not complain or instruct her to stop working with him. Xu continued working for Plaintiff through the rest of 2014 until she voluntarily resigned in January 2015. 31. Although waiver was not plead as an affirmative defense, Defendants presented evidence of waiver at trial and filed a Motion to Amend Pleadings to Conform with the Evidence, arguing that Plaintiff failed to object to the presentation and argument of the waiver defense at trial. The Court notes that the Defendants Trial Brief also raised the waiver defense. Plaintiff did not object to the waiver defense presented at trial or in the Defendants Trial Brief even though Plaintiff had the opportunity to object in both instances. The Court questioned defense counsel about the waiver defense at length without any objection from plaintiff s counsel. The Court finds that the Plaintiff will not suffer any unfair prejudice by granting Defendants Motion to Amend to Confirm Pleadings with the Evidence to assert the affirmative defense of Waiver as Count I Breach of Contract. 32. Based on the credibility of the witnesses and the record evidence at trial, the Court finds that the preponderance of the evidence presented at trial does not establish that Xu was acting in the capacity of an authorized real estate agent for the One Paraiso Transaction. The Court finds the evidence to be more persuasive that Xu did not breach her non-compete agreement with Plaintiff. The Court further finds that Plaintiff failed to put Xu on notice of an alleged breach and waived any alleged breach by permitting her to continue working with Dr. Li without any objection after learning about the One Paraiso Transaction. Count III Tortious Interference 33. At the close of Plaintiff s case in chief at trial, Defendants moved for Involuntary Dismissal of Count III Tortious Interference - as to ADTG and Realty, Inc. under Fl. R. Civ. Pro.
1.420 (b), arguing that Plaintiff failed to establish a prima facie case for tortious interference. The Court reserved ruling on this motion for supplemental briefing. On June 2, 2017 Defendants filed a Supplemental Motion for Involuntary Dismissal of Count III. Defendants also renewed this Motion in closing arguments. Plaintiff alleges that ADTG and Realty, Inc. tortiously interfered in its Independent Contractor s Agreement with Xu by inducing her to work with them on the One Paraiso Transaction and conceal this from Plaintiff, thereby causing Plaintiff to lose out on the opportunity to represent the buyers, CCCC. 34. A Tortious Interference cause of action requires the Plaintiff to prove the following elements: (1) the existence of a business relationship; (2) knowledge of the relationship on the part of the defendant; (3) an intentional and unjustified interference with the relationship by the defendant and (4) damage to the Plaintiff as a result of the breach of the relationship. Tamiami Trail Tours, Inc. v. Cotton, 463 So. 2d 1126, 1127 (Fla. 1985). Defendants argue that Plaintiff failed to present any evidence of the second, third and fourth elements of a tortious interference cause of action in its case in chief. 35. Based on the evidence presented in Plaintiff s case in chief, the Court finds that Plaintiff failed to establish a prima facie case for Tortious Interference as to Defendants ADTG and Realty, Inc. Plaintiff failed to provide any evidence that ADTG or Realty Inc. had knowledge that there was a written contract between Plaintiff and Xu, that ADTG or Realty, Inc. saw or read the terms of the contractual relationship between Defendant Xu and Plaintiff, that ADTG or Realty Inc. understood that the Contract had restrictive terms and conditions, that ADTG or Realty, Inc. intentionally or with malice interfered in the contractual relationship between Xu and Plaintiff by inducing Xu to work for them on the One Paraiso Transaction or that Plaintiff was prevented from representing the buyers, CCCC, and earning the commission generated by the One Paraiso
Transaction because of the alleged interference. The evidence presented in Plaintiff s case in chief only demonstrated that ADTG and Realty Inc. knew that Xu worked for Plaintiff. Count V - Procuring Cause 36. Defendants argue that the Court no longer has jurisdiction to hear Count V Procuring Cause since Plaintiff dismissed the only defendants to that cause of action, under the authority of Randle-Eastern Ambulance Service, Inc. v. Vasta, 360 So.2d 68, 69 (Fla. 1978) where the Supreme Court held that the voluntary dismissal of a cause of action deprives a Court of jurisdiction over that cause of action. Defendants argue that this rationale applies in the instant matter where the only defendants to the Procuring Cause count were dismissed prior to trial; therefore the cause of action is no longer viable for adjudication. While this argument is persuasive, the Court finds that a ruling on the Procuring Cause count is necessary for a full resolution of the claims at issue in this trial. 37. The testimony and record evidence presented at trial does not support Plaintiff s claim to be the procuring cause of the One Paraiso Transaction by a preponderance of the evidence. There is a two pronged analysis to determine whether a broker is the procuring cause of a real estate transaction: (1) The Broker must have taken affirmative acts to introduce the Buyer to the property and made the Buyer interested in the property, and (2) the Broker must have been continuously involved in the negotiations to consummate the Transaction. Rotemi Realty, Inc. v. Act Realty Company, Inc., 911 So. 2d 1181 (Fla. 2005). The evidence at trial established that CCCC was introduced to the One Paraiso property by the efforts of Dr. Li and David Ju when they were in New York, before CCCC had even met Xu. CCCC was interested in seeing One Paraiso and travelled to Miami with Dr. Li to see the One Paraiso development and other properties. CCCC testified that it authorized Realty Inc. to be its broker for the One Paraiso Transaction and that they
only discussed with deal with Dr. Li, not Xu. The governing contractual documents for the One Paraiso Transaction including the Reservation Agreement, the Purchase Agreement and the Broker s Registration Agreement all identify Realty Inc. as the authorized broker for CCCC. Competent evidence was presented that it was through the efforts and work of Dr. Li and Ju that this transaction was consummated. 38. The Court does not need to address Plaintiff s argument that Realty Inc. is not legally entitled to earn the broker commission from the One Paraiso Transaction as this is not an element of any claim presented by Plaintiff at this trial. As this Court has determined that Plaintiff is not the procuring cause, Plaintiff has no standing to challenge Realty Inc. s entitlement to the commissions. The Court further notes that Florida law provides that an out of state broker is entitled to earn commissions on a Florida real estate transaction if it is acting as a co-broker with a Florida licensed broker. See Tassy v. Hall, 429 So. 2d 30, 35 36 (Fla. 5DCA 1983) 39. The Court does not need to address Xu s Counterclaim for Damages as the Court finds that Plaintiff is not the Procuring Cause of the One Paraiso Transaction. It is hereby ORDERED AND ADJUDGED as follows: 1. Count II Breach of Contract as to Beini Xu. Plaintiff failed to prove by a preponderance of the evidence at trial that Xu breached her contract with Plaintiff and that Plaintiff was damaged thereby. Judgment is hereby entered in favor of Defendant Xu on this count. 2. Count III Tortious Interference with Contract as to Defendants American Da Tang Group Co. Ltd is hereby involuntarily dismissed with prejudice as Plaintiff failed to establish a prima facie case for tortious interference at trial. 3. Count V Procuring Cause. Plaintiff failed to prove by a preponderance of the evidence that it was the procuring cause of the One Paraiso Transaction. The broker commissions
in the amount of $1,041,504.00 shall be paid to the broker identified on the governing contracts between the buyer and the seller for the One Paraiso Transaction. 4. The Court reserves jurisdiction to determine any pending claims for attorneys fees and costs and for enforcement of this final judgment. DONE AND ORDERED in Chambers at Miami-Dade County, Florida, on 08/02/17. FINAL ORDERS AS TO ALL PARTIES SRS DISPOSITION NUMBER 12 THE COURT DISMISSES THIS CASE AGAINST ANY PARTY NOT LISTED IN THIS FINAL ORDER OR PREVIOUS ORDER(S). THIS CASE IS CLOSED AS TO ALL PARTIES. Judge s Initials JMR JOSE M RODRIGUEZ CIRCUIT COURT JUDGE The parties served with this Order are indicated in the accompanying 11th Circuit email confirmation which includes all emails provided by the submitter. The movant shall IMMEDIATELY serve a true and correct copy of this Order, by mail, facsimile, email or hand-delivery, to all parties/counsel of record for whom service is not indicated by the accompanying 11th Circuit confirmation, and file proof of service with the Clerk of Court. Signed and stamped original Order sent to court file by Judge Rodriguez staff. Copies to Counsel of Record: Roger J. Schindler, Esq. Mark A. Hendricks, Esq. Kimare S. Dyer, Esq.