Anthony Lennen v. Marriott Ownership Resorts, Inc. ( 2021 )

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-13215
____________________
ANTHONY LENNEN,
individually and on behalf of all others similarly situated,
BETH LENNEN,
individually and on behalf of all others similarly situated,
Plaintiffs-Appellants,
versus
MARRIOTT OWNERSHIP RESORTS, INC.,
MARRIOTT RESORTS, TRAVEL COMPANY, INC.,
d.b.a. MVC Exchange Company,
MARRIOTT RESORTS TITLE COMPANY, INC.,
MVC TRUST OWNERS ASSOCIATION, INC.,
FIRST AMERICAN FINANCIAL CORPORATION,
ORANGE COUNTY FLORIDA,
MARRIOTT RESORTS HOSPITALITY CORPORATION, et al.,
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2 Opinion of the Court 19-13215
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:16-cv-00855-CEM-EJK
____________________
Before LUCK and BRASHER, Circuit Judges. *
PER CURIAM:
This dispute arises out of Anthony and Beth Lennen’s pur-
chase of timeshares from Marriott1 between 2008 and 2015 that
they claim violated the Florida Condominium Act, the Florida
Land Trust Act, the Florida Vacation Plan and Timesharing Act
(Florida Timeshare Act), the Florida Civil Remedies for Criminal
Practices Act (Florida RICO Act), and the state statute governing
recording property records. After the district court dismissed their
initial complaint as a shotgun pleading, the Lennens filed an
amended complaint against Marriott, MVC Trust Owners
*This opinion is being entered by a quorum pursuant to 28 U.S.C. section
46(d).
1 We refer to Marriott Ownership Resorts, Inc., Marriott Resorts Travel Com-
pany, Inc., Marriott Resorts Title Company, Inc., and Marriott Resorts Hospi-
tality Corporation together as “Marriott.”
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19-13215 Opinion of the Court 3
Association, First American,2 and Orange County. The district
court dismissed the amended complaint because some counts were
shotgun pleadings and others failed to state a claim, and granted
summary judgment and judgment on the pleadings on the remain-
ing two claims. After careful consideration and with the benefit of
oral argument, we affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In January 2008, the Lennens purchased two timeshare es-
tates in Marriott’s Crystal Shores condominium located in Marco
Island, Florida.3 These were “single-site” timeshare estates, mean-
ing that they conveyed a fractional ownership interest in a single
condominium unit coupled with a license to use the accommoda-
tions at the Crystal Shores resort. The Lennens also purchased a
title insurance policy issued by First American, which insured
against any title defect in the two timeshare estates.
The MVC Trust
In 2010, in the aftermath of the foreclosure crisis, Marriott
had a glut of timeshare estates at its properties that were either un-
sold or had been foreclosed on and reverted to Marriott. With this
2 We refer to First American Financial Corporation, First American Trust,
FSB, and First American Title Insurance Company together as “First Ameri-
can.”
3 We take the facts alleged in the complaint as true, construing them in the
light most favorable to the Lennens, the non-movant. Sun Life Assurance Co.
of Can. v. Imperial Premium Fin., LLC, 904 F.3d 1197, 1207 (11th Cir. 2018).
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4 Opinion of the Court 19-13215
excess inventory, Marriott created the MVC Trust. The trust was
“a points-based product in a multisite timeshare plan” that included
forty-four Marriott-owned timeshare condominiums located in
eleven states. In contrast to single-site timeshare estates, multisite
timeshare estates convey a right to use multiple timeshare condo-
miniums. To create the trust, Marriott deeded its excess
timeshares to First American as trustee. Marriott, as the benefi-
ciary, retained the beneficial interests in the trust.
The rules for the trust were in four documents: (1) a trust
agreement (governing the formation of the trust and assignment of
interests); (2) bylaws for the trust owners’ association; (3) a reser-
vation system (governing the process for reserving timeshares);
and (4) the trust rules and regulations (governing the terms of use
of trust properties). A summary of the terms for the trust was in-
cluded in a “Trust Memorandum” that was recorded in the Orange
County land records.
The trust functioned this way. Marriott assigned a point
value to each timeshare it deeded to First American. Marriott
called the number of points required to reserve a particular
timeshare “Points for Use.” Marriott then deeded purchasers ben-
eficial interests in the trust in blocks of 250 “points.” Marriott called
these beneficial interests “Points for Sale” and sold them to pur-
chasers as “timeshare estates.” Trust owners could spend their
points to book any available timeshare in the trust.
Marriott periodically added new properties to the trust by
deeding them to First American and recording “notices of addition”
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19-13215 Opinion of the Court 5
in the Orange County land records. The notices of addition de-
scribed the newly added properties and indicated the point value
that Marriott had assigned to them. Marriott didn’t make newly
added properties immediately available to existing trust owners.
Instead, the newly added properties remained unavailable to trust
owners until Marriott, “in its sole and absolute discretion,” deliv-
ered another notice—a “notice of use rights”—to the trust owners’
association and First American.
The delivery of a notice of use rights for additional
timeshares triggered adjustments to the number of points in the
trust. After Marriott delivered a notice of use rights, it “recali-
brated” each trust owner’s proportional beneficial interest in the
trust to account for the additional Points for Use. According to the
Lennens, because the addition of new properties caused the total
number of points in the trust to increase, each addition caused the
trust owners’ proportional interests to decrease.
In addition, the trust agreement provided that “[t]he total
Points for Sale in the [t]rust at any given time will never exceed the
total Points for Use at such time” and that “[t]he total Points for
Sale allocated to the [t]rust [p]roperty [would] not change unless
. . . a [n]otice [o]f [u]se with respect to [newly added] property [was]
delivered.” Thus, the additional Points for Use from newly added
properties resulted in a corresponding increase of available Points
for Sale once Marriott delivered a notice of use rights for the newly
added properties. The new Points for Sale were then sold to new
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6 Opinion of the Court 19-13215
or existing customers, creating new trust owners, or increasing the
number of points held by existing owners.
The Lennens’ Interests in the MVC Trust
In January 2015, the Lennens purchased four beneficial in-
terests in the MVC Trust. The Lennens’ deed was recorded in the
Orange County land records and described these interests as:
4 Interests (numbered for administrative purposes:
H04815 & H04816 & H04817 & H04818) in the MVC
Trust (“Trust”) evidenced for administrative, assess-
ment and ownership purposes by 1,000 Points (250
Points for each Interest), which Trust was created
pursuant to and further described in that certain MVC
Trust Agreement dated March 11, 2010, executed by
and among First American Trust, FSB, a federal sav-
ings bank, solely as trustee of Land Trust No. 1082-
0300-00, (a.k.a MVC Trust), Marriott Ownership Re-
sorts, Inc., a Delaware corporation, and MVC Trust
Owners Association, Inc., a Florida corporation
not-for-profit, as such agreement may be amended
and supplemented from time to time (“Trust Agree-
ment”), a memorandum of which is recorded in Offi-
cial Records Book 10015, Page 4176, Public Records
of Orange County, Florida (“Trust Memorandum”).
The Interests shall have a Use Year Commencement
Date of January 01, 2016 (subject to Section 3.5 of the
Trust Agreement).
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The Lennens also purchased a title insurance policy from First
American, which insured against any title defect in their beneficial
interests.
The Lennens’ Lawsuit
According to the Lennens, the MVC Trust diminished the
value of their single-site timeshare estates, and their beneficial in-
terests in the trust were an “unmarketable use-right . . . subject to
Marriott’s opaque and discretionary point-valuation process.”
They sued Marriott, the trust owners’ association, First American,
Orange County, and the Orange County Comptroller for negli-
gence, violating the Florida Condominium Act, the Florida Land
Trust Act, the Florida Timeshare Act, and the Florida RICO Act.
The defendants moved to dismiss. Orange County and the
Comptroller moved to dismiss the Lennens’ claim against them for
failure to provide the statutorily required pre-suit notice for a claim
against state subdivisions and for failure to state a claim. Marriott,
the trust owners’ association, and First American moved to dismiss
the Lennens’ claims for failure to state a claim and because the
complaint was a shotgun pleading.
The district court dismissed the Lennens’ claim against Or-
ange County and the Comptroller for failure to comply with Flor-
ida’s pre-suit notice requirements and dismissed their claims
against Marriott, the trust owners’ association, and First American
because the complaint was a shotgun pleading. In its order, the
district court explained that shotgun pleadings violated Federal
Rules of Civil Procedure 8 and 10. The district court also explained
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8 Opinion of the Court 19-13215
that “[t]he Eleventh Circuit has identified four types of shotgun
pleadings” and described each type. The district court concluded
that the Lennens’ complaint was a shotgun pleading because:
(1) each count, with one exception, reincorporated all of the pre-
ceding counts and factual allegations; (2) the allegations inconsist-
ently grouped the different defendants; and (3) the complaint was
“replete with repetitive and confusing allegations, many of which
appear[ed] to be irrelevant to [the] actual causes of action.” The
district court granted the Lennens leave to amend and instructed
that their amended complaint “must clearly set forth each cause of
action they intend to pursue against each named Defendant, the
legal basis for that cause of action, and the factual allegations sup-
porting their entitlement to recovery,” “carefully identify each De-
fendant and clearly lay out which allegations pertain to which de-
fendants,” and that “each count should incorporate only those facts
that are relevant to proving [the Lennens’] entitlement to relief for
the specific allegation of that count and should not incorporate any
portion of a previous count.”
The Amended Complaint
The Lennens filed an amended complaint naming Marriott,
the trust owners’ association, First American, and Orange
County—but not the Comptroller—as defendants. The Lennens
asserted fifteen claims:
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19-13215 Opinion of the Court 9
Declaratory relief claims (counts I–III)
The Lennens’ first three claims sought declaratory relief
based on their allegations that the trust and their deed were void.
• First declaratory relief claim (count I). In count I, the Len-
nens sought a declaration that their deed was void because:
(1) their beneficial interests weren’t real property under
Florida law; and (2) the deed’s description of the beneficial
interests wasn’t a valid legal description of a parcel of real
property.
• Second declaratory relief claim (count II). In count II, the
Lennens sought a declaration that their deed was void be-
cause: (1) Marriott couldn’t convey legal title to trust prop-
erty when it had already conveyed legal and equitable title
to First American as trustee; and (2) the trust was void under
the doctrine of merger.
• Third declaratory relief claim (count III). And in count III,
the Lennens sought a declaration that: (1) they were enti-
tled to full coverage payment on their First American title
insurance policy covering their beneficial interests because
First American had violated section 627.784 by insuring the
Lennens’ beneficial interests even though the interests were
defective; or (2) their title insurance policy was “void ab ini-
tio” because the trust was void.
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Negligence claim (count IV)
The amended complaint also included a negligence claim
against Orange County.
• Negligence claim (count IV). In count IV, the Lennens al-
leged that the county had improperly: (1) recorded and in-
dexed their deed, the trust memorandum, notices of addi-
tion, and mortgages on trust purchases; and (2) assessed doc-
umentary stamp taxes when it recorded the Lennens’ deed.
According to the Lennens, the county breached its duty un-
der section 28.222 to only record “authorized” documents
for real property located in Orange County because the trust
documents were neither authorized nor related to proper-
ties located in Orange County.
Florida Condominium Act, Florida Land Trust Act, and Florida
Timeshare Act claims (counts V–XIII)
In the next nine counts of the amended complaint, the Len-
nens raised statutory claims based on Marriott’s, the trust owners’
association’s, and First American’s alleged violations of the Florida
Condominium Act, the Florida Land Trust Act, and the Florida
Timeshare Act.
• Section 718.104 claim (count V). In count V, the Lennens
claimed that Marriott, the trust owners’ association, and
First American violated section 718.104 of the Florida Con-
dominium Act because: (1) the trust lacked a recorded con-
dominium declaration; and (2) none of the trust properties’
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19-13215 Opinion of the Court 11
condominium declarations “mention[ed] or recognize[d]”
the trust.
• Section 721.57 claim (count VI). In count VI, the Lennens
claimed that Marriott, the trust owners’ association, and
First American violated section 721.57 of the Florida
Timeshare Act because: (1) their beneficial interests weren’t
real property; (2) their beneficial interests weren’t timeshare
estates; and (3) the trust didn’t satisfy the requirements of
section 721.08 of the Florida Timeshare Act for the reasons
“alleged in counts VII and VIII.”
• Section 721.03(7)/section 721.08/section 736.1011 claim
(count VII). In count VII, the Lennens claimed that Mar-
riott, the trust owners’ association, and First American vio-
lated sections 721.03(7) and 721.08 of the Florida Timeshare
Act because First American was not independent from Mar-
riott, and it failed to verify: (1) that the Lennens’ deed con-
veyed valid title to a timeshare estate; and (2) that the trust’s
condominiums were “subject to a recorded nondisturbance
and notice to creditor instrument.” Count VII also alleged
that Marriott violated section 736.1011(1) of the Florida
Trust Code because it “agreed . . . to fully indemnify First
American for its acts as trustee.”
• Section 721.08(2)(c)4. claim (count VIII). In count VIII, the
Lennens claimed that Marriott, the trust owners’ associa-
tion, and First American violated section 721.08(2)(c)4. of
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the Florida Timeshare Act because Marriott didn’t provide
First American evidence that the “facilities and accommoda-
tions” it transferred to the trust were “free and clear from
the claims of interestholders.” Count VIII also alleged that,
because the trust didn’t meet the requirements of section
721.08(2)(c)4., “Marriott unlawfully withdrew proceeds
from the sales of the MVC Trust from escrow.” And count
VIII alleged that “First American violated [section] 721.08.”
• Section 721.03(10) claim (count IX). In count IX, the Len-
nens claimed that Marriott and the trust owners’ association
violated section 721.03(10) of the Florida Timeshare Act by
not maintaining a “one-to-one nightly-use ratio” because:
(1) the trust documents didn’t contain “any type of method-
ology to maintain” the one-to-one ratio; and (2) it was
“mathematically impossible to achieve anything resembling
a one-to-one nightly-use ratio.” According to the Lennens,
there was “an unavoidable discrepancy between the point
value ascribed to properties in the MVC Trust that are avail-
able to MVC Trust Owners and the total points allotted to
all properties in the MVC Trust.”
• Section 721.552 claim (count X). In count X, the Lennens
claimed that Marriott, the trust owners’ association, and
First American violated section 721.552(1)(b) of the Florida
Timeshare Act because Marriott “unfairly and unreasonably
increase[d] competition among MVC Trust Owners” by
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restricting the trust owners’ access to certain “high-demand”
timeshares.
• Section 721.13/Florida Condominium Act claim (count XI).
In count XI, the Lennens claimed that Marriott and the trust
owners’ association violated section 721.13 of the Florida
Timeshare Act because: (1) the trust owners’ association
was “necessarily incapable” of fulfilling its fiduciary duties to
trust owners as “merely a proxy for Marriott”; (2) the trust
owners’ association was “not created prior to the first clos-
ing” of sales of the traditional timeshare estates that were
included in the trust properties; (3) the trust properties were
outside of the trust owners’ association’s authority; and
(4) the trust owners’ association collected “arbitrary” fees.
Count XI also alleged that the trust owners’ association vio-
lated the Florida Condominium Act because it purported to
manage the trust properties that already had owners’ associ-
ations.
• Section 721.15 claim (count XII). In count XII, the Lennens
claimed that Marriott and the trust owners’ association vio-
lated section 721.15 of the Florida Timeshare Act by “un-
fairly” allocating common expenses for restricted-use prop-
erties differently than they did for other trust property.
• Section 721.56 claim (count XIII). And in count XIII, the
Lennens claimed that Marriott and the trust owners’ associ-
ation violated section 721.56 of the Florida Timeshare Act
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14 Opinion of the Court 19-13215
because the trust’s reservation procedures didn’t provide
separate reservation systems for trust owners and owners of
traditional single-site timeshare estates.
Florida RICO Act claims
Finally, the amended complaint included two claims against
Marriott and First American for violating the Florida RICO Act.
• First Florida RICO Act claim. In the first Florida RICO Act
claim, the Lennens alleged that Marriott and First American
conspired to violate section 721.08 of the Florida Timeshare
Act by allowing Marriott to withdraw proceeds from trust
sales from escrow.
• Second Florida RICO Act claim. And in the second Florida
RICO Act claim, the Lennens alleged that Marriott and First
American conspired to violate section 721.08 of the Florida
Timeshare Act by transferring timeshare estates to a trust
that didn’t comply with sections 721.08(2)(c)4. and 721.57 of
the Florida Timeshare Act.
The defendants again moved to dismiss. Marriott, the trust
owners’ association, and First American again argued that the
amended complaint was a shotgun pleading and that the MVC
Trust and trust documents complied with Florida law. Orange
County argued that the Lennens had failed to allege that it acted
negligently.
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The District Court Dismissed Three Claims As Shotgun Pleadings
The district court dismissed the section 721.03(7)/section
721.08/section 736.1011 claim (count VII), the section
721.08(2)(c)4. claim (count VIII), and the section 721.13/Florida
Condominium Act claim (count XI) as shotgun pleadings. The dis-
trict court dismissed these claims as shotgun pleadings because
they failed to separate into different counts each cause of action or
claim for relief. And it dismissed the section 721.03(7)/section
721.08/section 736.1011 claim (count VII) and the section
721.08(2)(c)4. claim (count VIII) because they had more than one
claim against more than one defendant without alleging which of
the defendants were responsible for which acts or omissions. Be-
cause it was the second dismissal for failing to comply with rules 8
and 10, the district court didn’t grant the Lennens leave to amend.
The District Court Dismissed Ten Claims For Failure to
State a Claim
The district court dismissed for failure to state a claim the
second and third declaratory relief claims (counts II and III), the
section 718.104 claim (count V), the section 721.57 claim (count
VI), the section 721.03(10) claim (count IX), the section 721.552
claim (count X), the section 721.15 claim (count XII), the section
721.56 claim (count XIII), and the first and second Florida RICO
Act claims. For the declaratory relief claims, the district court con-
cluded that the second declaratory relief claim (count II) didn’t
state a claim because the interests that Marriott deeded to the Len-
nens—beneficial interests in the trust—were separate and distinct
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16 Opinion of the Court 19-13215
from the legal and equitable title that Marriott conveyed to First
American as trustee. And the district court concluded that the third
declaratory relief claim (count III) failed to state a claim because:
(1) the Lennens didn’t allege that they had made a claim under the
title insurance policy; and (2) section 627.784 didn’t provide a pri-
vate right of action. 4
For the Florida Condominium Act, Florida Land Trust Act,
and the Florida Timeshare Act claims, the district court dismissed
the section 718.104 claim (count V) because the trust was not sub-
ject to the Florida Condominium Act. The district court dismissed
the section 721.57 claim (count VI) because: (1) it was based on the
section 721.03(7)/section 721.08/section 736.1011 claim (count
VII) and the section 721.08(2)(c)4. claim (count VIII) that were dis-
missed as shotgun pleadings; and (2) the Florida Timeshare Act
“explicitly contemplate[d] the offering of timeshare estates in a
multisite timeshare plan.”
The district court dismissed the section 721.03(10) claim
(count IX) because the terms of the trust agreement provided a
method to govern point values and maintained the required
one-to-one ratio. The district court dismissed the section 721.552
claim (count X) because the Lennens: (1) didn’t allege how Mar-
riott’s addition of property to the trust increased competition; and
4Section 627.784 provides that “[a] title insurance policy or guarantee of title
may not be issued without regard to the possible existence of adverse matters
or defects of title.” Fla. Stat. § 627.784.
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(2) cited no authority to support their contention that Marriott’s
method of adding property to the trust violated its fiduciary duty.
The district court dismissed the section 721.15 claim (count
XII) because: (1) section 721.15 permitted a different allocation of
common expenses for properties not yet included in a timeshare
plan; and (2) the Lennens’ allegation that Marriott’s method of al-
locating expenses was unreasonable was “based on pure specula-
tion.” And the district court dismissed the section 721.56 claim
(count XIII) because the Lennens hadn’t sufficiently alleged how
Marriott’s reservation system violated the statute’s requirements.
Finally, for the Florida RICO Act claims, the district court
concluded that both claims failed because the Lennens didn’t iden-
tify under which subsection of the Florida RICO Act they brought
their claims. And the claims that served as the necessary predicate
acts—the section 721.57 claim (count VI), the section
721.03(7)/section 721.08/section 736.1011 claim (count VII), the
section 721.08(2)(c)4. claim (count VIII)—failed to state a claim.
After the district court’s dismissal order, the only claims re-
maining were: (1) the first declaratory relief claim (count I) against
Marriott; and (2) the negligence claim (count IV) against Orange
County.
The District Court Granted Judgment on the Pleadings for Mar-
riott on the First Declaratory Relief Claim (Count I)
Marriott then moved for judgment on the pleadings on the
first declaratory relief claim (count I), arguing that the Lennens’
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18 Opinion of the Court 19-13215
deed was not void because their beneficial interests in the trust
were real property under the Florida Land Trust Act and that the
deed sufficiently described the beneficial interests. The district
court granted the motion, and entered judgment on the pleadings
for Marriot, because the Lennens’ deed was valid. The deed, the
district court concluded, sufficiently described the beneficial inter-
ests after considering the property descriptions contained in parol
evidence—the notices of addition and the trust memorandum.
The District Court Granted Summary Judgment for Orange
County on the Negligence Claim (Count IV)
Orange County moved for summary judgment on the neg-
ligence claim (count IV), arguing that it was not negligent as a mat-
ter of law because it had no discretion to reject the trust documents
for recording or to decline to assess documentary stamp taxes after
it recorded them. The district court granted the motion because:
(1) it was premised on a violation of section 28.222, which didn’t
provide a private right of action; and (2) even if the Lennens
could’ve asserted a negligence claim, section 28.222 didn’t give the
county discretion to refuse to record legal documents.
The Lennens appeal the district court’s orders:
• (1) dismissing as shotgun pleadings the section
721.03(7)/section 721.08/section 736.1011 claim (count VII),
the section 721.08(2)(c)4. claim (count VIII), and the section
721.13/Florida Condominium Act claim (count XI);
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• (2) dismissing for failure to state a claim the second and third
declaratory relief claims (counts II and III), the section
718.104 claim (count V), the section 721.57 claim (count VI),
the section 721.03(10) claim (count IX), the section 721.15
claim (count XII), and the first and second Florida RICO Act
claims;
• (3) granting judgment on the pleadings on the first declara-
tory relief claim (count I); and
• (4) granting summary judgment on the negligence claim
(count IV).5
STANDARDS OF REVIEW
We review dismissal on shotgun pleading grounds for an
abuse of discretion. Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291,
1294 (11th Cir. 2018). And we review the district court’s dismissal
for failure to state a claim, judgment on the pleadings, and sum-
mary judgment de novo. Sun Life, 904 F.3d at 1207. “The
5 The Lennens don’t appeal the district court’s dismissal of the section 721.552
claim (count X) and the section 721.56 claim (count XIII). And in their brief
on appeal, the Lennens make a passing reference to the district court’s dismis-
sal of their punitive damages allegations on shotgun pleading grounds but fail
to argue on the merits as to this issue. The issue is therefore deemed aban-
doned. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir.
2014) (“We have long held that an appellant abandons a claim when he either
makes only passing references to it or raises it in a perfunctory manner with-
out supporting arguments and authority.”); Farrow v. West, 320 F.3d 1235,
1242 n.10 (11th Cir. 2003).
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20 Opinion of the Court 19-13215
standards for reviewing decisions on motions to dismiss and mo-
tions for judgment on the pleadings are the same: whether the
count stated a claim for relief.” Id. (quotation marks omitted).
To state a claim, a “complaint must include allegations plau-
sibly suggesting (not merely consistent with) the plaintiff’s entitle-
ment to relief.” Id. (quotation marks omitted). We “accept all facts
in the complaint as true and view those facts in the light most fa-
vorable to the plaintiff.” Id. “However, conclusory allegations, un-
warranted factual deductions or legal conclusions masquerading as
facts will not prevent dismissal.” Taylor v. Polhill, 964 F.3d 975,
981 (11th Cir. 2020) (citation omitted).
For summary judgment, “the movant must demonstrate
that there is no genuine dispute as to any material fact and that it is
entitled to judgment as a matter of law.” Sun Life, 904 F.3d at 1207
(alterations adopted and quotation marks omitted). In reviewing
the record, we “view the submitted evidence in the light most fa-
vorable to the non-moving party.” Id. (quotation marks omitted).
DISCUSSION
The Lennens argue that the district court erred in granting
judgment on the pleadings for Marriott on the first declaratory re-
lief claim (count I), dismissing the remaining claims against Mar-
riott, the trust owners’ association, and First American as shotgun
pleadings and for failure to state a claim, and granting summary
judgment for Orange County on the negligence claim (count IV).
The defendants urge us to affirm across the board. And we do.
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19-13215 Opinion of the Court 21
We first explain why the district court did not err in granting
judgment on the pleadings for Marriott. We then explain why the
district court properly dismissed the remaining claims against Mar-
riott, the trust owners’ association, and First American. We con-
clude by explaining why the district court correctly granted sum-
mary judgment for Orange County.
The District Court’s Judgment on the Pleadings on the First De-
claratory Relief Claim (Count I)
The Lennens appeal the district court’s judgment on the
pleadings for Marriott on their first declaratory relief claim (count
I). The Lennens argue that the district court erred in concluding
that their beneficial interests in the trust were real property and in
considering parol evidence to determine that the deed’s description
of the beneficial interests was sufficient. But their beneficial inter-
ests in the MVC Trust were real property under Florida law, and
parol evidence was admissible to determine the description of the
beneficial interests. The district court did not err in granting judg-
ment on the pleadings for Marriott.
The Lennens’ beneficial interests in the MVC Trust were real
property.
Under Florida law, “[t]o effect a valid conveyance of real
property, a deed or other instrument must describe the property
such that it is evident that a particular parcel . . . is to be conveyed.”
Mendelson v. Great W. Bank, F.S.B., 712 So. 2d 1194, 1196 (Fla.
Dist. Ct. App. 1998). The Lennens argue that their beneficial
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22 Opinion of the Court 19-13215
interests in the MVC Trust were “intangible property right[s]”—
not real property—so their deed didn’t effect a valid conveyance.
We, like the district court, disagree and conclude that the Lennens’
beneficial interests were real property interests under both the
Florida Land Trust Act and the Florida Timeshare Act.
The Florida Land Trust Act defines a “[b]eneficial interest”
as “any interest . . . in a land trust which is held by a beneficiary,”
Fla. Stat. § 689.071(2)(a), and defines a “[b]eneficiary” as “any per-
son or entity having a beneficial interest in a land trust,” id.
§ 689.071(2)(b). 6 A “[l]and trust” is an “express written agreement
or arrangement by which a . . . trust is declared of any land . . . un-
der which the title to real property . . . is vested in a trustee by a
recorded instrument.” Id. § 689.071(2)(c). And, importantly here,
unless “the trust agreement . . . contains a provision defining and
6 The Lennens contend that we should apply the 2010 versions of the Florida
Land Trust Act and Florida Timeshare Act because that is when Marriott cre-
ated the trust. But because the Lennens’ causes of action accrued when they
purchased their beneficial interests on January 14, 2015, see Fla. Stat.
§ 95.031(1) (“A cause of action accrues when the last element constituting the
cause of action occurs.”), we apply the statutes as they were in effect when the
claimed accrued. See R.J. Reynolds Tobacco Co. v. Sheffield, 266 So. 3d 1230,
1232 (Fla. Dist. Ct. App. 2019) (explaining that Florida courts apply the version
of a statute “in effect when the instant . . . cause of action accrued”). For that
reason, unless we indicate otherwise, the Florida Statutes cited or quoted in
this opinion are to those that were in effect on January 14, 2015. See, e.g.,
Universal Prop. & Cas. Ins. Co. v. Loftus, 276 So. 3d 849, 852 n.2 (Fla. Dist. Ct.
App. 2019) (applying the version of the Florida Condominium Act that was in
effect when the alleged property damage occurred).
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19-13215 Opinion of the Court 23
declaring the interests of beneficiaries of a land trust to be personal
property only, . . . the interests of the land trust beneficiaries are
real property.” Id. § 689.071(6) (emphasis added).
The trust agreement described the interests that were con-
veyed to purchasers as “beneficial interest[s] in the [t]rust” and de-
scribed the owners of these interests as “[b]eneficiaries.” Marriott
deeded legal title to the timeshare estates to First American as trus-
tee, and it transferred any new properties to the trust by recording
“notices of addition” in the Orange County land records. The trust
agreement stated that it “established a trust in accordance with
[s]ection 689.071” and that beneficiaries were “entitle[d] . . . to re-
serve, use, and occupy the [t]rust [p]roperty.” Thus, both expressly
and in compliance with the statutory requirements, Marriott cre-
ated a land trust when it created the MVC Trust. See Fla. Stat.
§ 689.071(2)(c). And because the MVC Trust was a land trust that
didn’t “defin[e] and declar[e] the interests of beneficiaries . . . to be
personal property,” the Lennens’ beneficial interests “[were] real
property.” See id. § 689.071(6).
This conclusion is consistent with the Florida Timeshare
Act. The trust agreement provided that beneficial interests in the
trust “shall constitute a ‘timeshare estate’ as that term is defined by
[s]ection 721.05.” Section 721.05 of the Florida Timeshare Act de-
fines “[t]imeshare estate” to include “a direct or indirect interest in
a trust that complies in all respects with the provisions of [section]
721.08(2)(c)4. . . . provided that the trust does not contain any per-
sonal property timeshare interests.” Fla. Stat. § 721.05(34). And
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24 Opinion of the Court 19-13215
under the Florida Timeshare Act, “[a] timeshare estate is a parcel
of real property.” Id.
The Lennens’ beneficial interests in the MVC Trust met sec-
tion 721.05’s definition of a “timeshare estate.” First, Marriott
granted the Lennens direct interests in the trust. Second, the trust
didn’t contain any personal property timeshare interests. 7 The
trust agreement contemplated only the submission of real property
to the trust, and the Lennens don’t allege that Marriott transferred
anything other than real property to the trust.
And third, the Lennens haven’t shown that the trust failed
to comply with section 721.08(2)(c)4. That statute imposes re-
quirements on trusts holding timeshare interests, including:
(1) that “[t]he trustee must be independent from any developer or
managing entity of the timeshare plan”; and (2) that prior to the
transfer of “accommodations and facilities” to the trust, “any lien
or other encumbrance against such accommodations and facilities”
must “be made subject to a nondisturbance and notice to creditors
instrument.” Id. § 721.08(2)(c)4.b. In their amended complaint, the
Lennens alleged that the trust didn’t comply with section
721.08(2)(c)4. because: (1) First American wasn’t independent
from Marriott; and (2) First American failed to “verify that [the]
7 A “[p]ersonal property timeshare interest” is “a right to occupy an accommo-
dation located on or in or comprised of personal property that is not perma-
nently affixed to real property, whether or not coupled with a beneficial or
ownership interest in the accommodations or personal property.” Fla. Stat.
§ 721.05(28).
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19-13215 Opinion of the Court 25
timeshare estate[s] w[ere] free and clear of the claims of any inter-
estholders.” But the allegations are insufficient.
The Lennens’ allegation that First American wasn’t inde-
pendent from Marriott is insufficient because the Lennens didn’t
explain how First American’s role—other than selling title insur-
ance policies—is inconsistent with acting as a fiduciary and why
any fees earned wouldn’t have been “fiduciary fees” permitted un-
der the Florida Timeshare Act. See id. § 721.05(20)(b), (d)4. The
Florida Timeshare Act permitted First American to issue title insur-
ance policies in connection with the sale of interests in a timeshare
estate. See id. § 721.05(20)(d)(4). Marriott’s indemnity of First
American didn’t compromise First American’s independence. The
trust agreement limited the indemnity “[t]o the extent permitted
by applicable law,” and included exceptions for First American’s
gross negligence or willful misconduct. See Fla. Stat. § 736.1011(1)
(“A term of a trust relieving a trustee of liability for breach of trust
is unenforceable to the extent that the term: (a) Relieves the trus-
tee of liability for breach of trust committed in bad faith or with
reckless indifference to the purposes of the trust or the interests of
the beneficiaries. . . .”).
The Lennens’ allegation that First American failed to “verify
that [the] timeshare estate[s] w[ere] free and clear of the claims of
any interestholders” also is insufficient because it is contradicted by
the trust agreement. See Griffin Indus., Inc. v. Irvin, 496 F.3d 1189,
1205–06 (11th Cir. 2007) (“[W]hen the exhibits contradict the gen-
eral and conclusory allegations of the pleading, the exhibits
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26 Opinion of the Court 19-13215
govern.”). The trust agreement provided that, “[p]rior to the trans-
fer of additional property to the [t]rust . . . any lien or other encum-
brance against such property shall be made subject to a nondisturb-
ance and notice to creditors instrument, a subordination and notice
to creditors instrument, or an alternate assurance in accordance
with [s]ection 721.53.” And the Lennens have failed to identify any
defects or encumbrances. Without factual allegations to support
their claim, we cannot conclude that the trust didn’t comply with
section 721.08(2)(c)4.
Finally, the Lennens argue that section 721.05(34) requires
that “a timeshare estate must be a parcel of real property” and that
their beneficial interests aren’t a parcel of real property. But the
statute says “[a] timeshare estate is a parcel of real property.” Id.(emphasis added). Because section 721.05(34) is “plain and unam-
biguous, there is no need for further inquiry.” United States v. Ste-
vens, 997 F.3d 1307, 1314 (11th Cir. 2021). And because we con-
clude that the Lennens’ beneficial interests in the trust were
“timeshare estates” as defined by the Florida Timeshare Act, those
interests were real property and were properly conveyed by deed.
See Mendelson, 712 So. 2d at 1196.
The deed sufficiently described a particular parcel of real prop-
erty.
To effect a valid conveyance of real property, a deed “must
describe the property such that it is evident that a particular parcel,
and not a different or unspecified one, is to be conveyed.” Id. at
1196. Marriott contends that the district court properly considered
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19-13215 Opinion of the Court 27
the notices of addition and the trust memorandum to conclude that
the deed sufficiently described the beneficial interests. The Len-
nens disagree, insisting that the description was “facially invalid”
and couldn’t be cured through parol evidence. We conclude that
the district court didn’t err because the deed, considered together
with the notices of addition and trust memorandum, sufficiently
described the Lennens’ beneficial interests.
Florida courts “liberally construe the sufficiency of a legal
description in a deed.” Refaie v. Bayview Loan Servicing, LLC,
___ So. 3d ___, 2021 WL 1931892, at *4 (Fla. Dist. Ct. App. May
14, 2021). “[A] description is sufficient if, by relying on the descrip-
tion read in light off all facts and circumstances referred to in the
instrument, a surveyor could locate the land.” Mendelson, 712
So. 2d at 1196. “[P]arol evidence is admissible to determine the de-
scription so long as the instrument itself shows that the parties
were contemplating a particular piece of property . . . .” Bajrangi
v. Magnethel Enters., Inc., 589 So. 2d 416, 418 (Fla. Dist. Ct. App.
1991).
The Lennens’ deed specified that it conveyed interests in the
trust pursuant to the trust agreement and trust memorandum,
which both referenced the notices of addition. Because we may
“rely[] on the description read in light of all facts and circumstances
referred to in the instrument,” Mendelson, 712 So. 2d at 1196 (em-
phasis omitted), we may consult these documents to identify the
trust property, see Bajrangi, 589 So. 2d at 418 (“Where the descrip-
tion shows that a particular tract as distinguished from other lands
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28 Opinion of the Court 19-13215
is meant, then parol evidence can be resorted to to apply the de-
scription, or identify or locate the land, though the description be
somewhat general.” (citation omitted)). The notices of addition
included a legal description of each property that Marriott added to
the trust. Reading these documents together, it is evident that the
Lennens’ deed conveyed a “particular piece of property”—
timeshare estates in the real property held by the trust. See Ba-
jrangi, 589 So. 2d at 418; Mendelson, 712 So. 2d at 1196. Accord-
ingly, the Lennens’ deed sufficiently described their beneficial in-
terests.
The District Court’s Dismissal of Three Claims as Shotgun Plead-
ings
The district court dismissed the section 721.03(7)/section
721.08/section 736.1011 claim (count VII), the section
721.08(2)(c)4. claim (count VIII), and the section 721.13/Florida
Condominium Act claim (count XI) as shotgun pleadings because
the Lennens: (1) failed to separate each cause of action or claim for
relief into different counts; and (2) grouped claims against multiple
defendants into single counts without specifying which of the de-
fendants were responsible for which acts or omissions. The district
court didn’t grant leave to amend. The Lennens argue that the dis-
trict court erred because these claims were properly pleaded, and,
even if they weren’t, the district court should have given them a
second opportunity to amend. We disagree.
“Shotgun pleadings wreak havoc on the judicial system” and
“divert already stretched judicial resources into disputes that are
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19-13215 Opinion of the Court 29
not structurally prepared to use those resources efficiently.” Wag-
ner v. First Horizon Pharm. Corp., 464 F.3d 1273, 1279 (11th Cir.
2006) (alteration adopted and quotation marks omitted). We have
identified four types of shotgun pleadings. Weiland v. Palm Beach
Cnty. Sheriff’s Office, 792 F.3d 1313, 1321–23 (11th Cir. 2015). The
first is “a complaint containing multiple counts where each count
adopts the allegations of all preceding counts, causing each succes-
sive count to carry all that came before and the last count to be a
combination of the entire complaint.” Id. The second is “a com-
plaint that . . . is guilty of the venial sin of being replete with con-
clusory, vague, and immaterial facts not obviously connected to
any particular cause of action.” Id. at 1322. The third is a complaint
“that commits the sin of not separating into a different count each
cause of action or claim for relief.” Id. at 1322–23. And the fourth
and final type is a complaint that commits the “sin of asserting mul-
tiple claims against multiple defendants without specifying which
of the defendants are responsible for which acts or omissions, or
which of the defendants the claim is brought against.” Id. at 1323.
Section 721.03(7)/section 721.08/section 736.1011 claim
(count VII)
In count VII, the Lennens claimed that Marriott, the trust
owners’ association, and First American violated sections 721.03(7)
and 721.08 of the Florida Timeshare Act, and claimed that Marriott
and the trust owners’ association violated section 736.1011(1) of the
Florida Trust Code. Count VII was a shotgun pleading because it
impermissibly alleged multiple claims and multiple statutory
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30 Opinion of the Court 19-13215
violations against multiple defendants. Because count VII fell into
the third category of shotgun pleadings, the district court’s dismis-
sal was not an abuse of discretion. See id. at 1322–23.
Section 721.08(2)(c)4. claim (count VIII)
In count VIII, the Lennens claimed that Marriott, the trust
owners’ association, and First American violated section
721.08(2)(c)4. of the Florida Timeshare Act and that First American
violated section 721.08 because: (1) Marriott didn’t provide First
American evidence that the “facilities and accommodations” it
transferred to the trust were “free and clear from the claims of in-
terestholders”; and (2) “Marriott unlawfully withdrew proceeds
from the sales of the MVC Trust from escrow.” Count VIII as-
serted multiple claims against multiple defendants without specify-
ing which of the defendants were responsible for which acts or
omissions. This fell into the fourth category of shotgun pleadings
and the district court didn’t abuse its discretion by dismissing it.
See id.Section 721.13/Florida Condominium Act claim (count XI)
In count XI, the Lennens claimed that Marriott and the trust
owners’ association violated section 721.13 of the Florida
Timeshare Act, and that the trust owners’ association violated the
Florida Condominium Act. The Lennens argue that count XI was
not a shotgun pleading because they alleged only a single violation
under section 721.13 and their “discussion of [section] 718 [of the
Florida Condominium Act]” was not a separate claim because that
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19-13215 Opinion of the Court 31
statute was “specifically incorporated into [section] 721.13.” We
disagree.
The Lennens alleged that the trust owners’ association vio-
lated the Florida Condominium Act and section 721.13 of the Flor-
ida Timeshare Act, and each have their own elements of proof.
Combining them into count XI was impermissible. See, e.g.,
Cesnik v. Edgewood Baptist Church, 88 F.3d 902, 905 (11th Cir.
1996) (“[S]eparate, discrete causes of action should be plead in sep-
arate counts.”). For this reason, count XI fell into the third category
of shotgun pleadings, and the district court didn’t abuse its discre-
tion by dismissing it. See Weiland, 792 F.3d at 1322–23.
Leave to amend
The Lennens argue that even if the section 721.03(7)/section
721.08/section 736.1011 claim (count VII), the section
721.08(2)(c)4. claim (count VIII), and the section 721.13/Florida
Condominium Act claim (count XI) were shotgun pleadings, the
district court abused its discretion by not granting them another
opportunity to amend. “In dismissing a shotgun complaint for
noncompliance with [r]ule 8(a), a district court must give the plain-
tiff ‘one chance to remedy such deficiencies.’” Jackson v. Bank of
Am., N.A., 898 F.3d 1348, 1358 (11th Cir. 2018) (quoting Vibe Mi-
cro, Inc., 878 F.3d at 1295) “After that one . . . opportunity to re-
plead comes and goes,” the district court may “dismiss with preju-
dice if the party has still [not] filed a compliant pleading.” Vibe Mi-
cro, Inc., 878 F.3d at 1296 (citing Wagner v. Daewoo Heavy Indus.
Am. Corp., 314 F.3d 541 (11th Cir. 2002)). “What matters is
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32 Opinion of the Court 19-13215
function, not form: the key is whether the plaintiff had fair notice
of the defects and a meaningful chance to fix them.” Jackson, 898
F.3d at 1358. “If that chance is afforded and the plaintiff fails to
remedy the defects, the district court does not abuse its discretion
in dismissing the case with prejudice on shotgun pleading
grounds.” Id.
Here, the district court gave the Lennens one opportunity
to amend after it dismissed their initial complaint. The question is
whether they were entitled to a second. The Lennens argue that
they were because the district court’s second dismissal was based
on “entirely different grounds” than its dismissal of the initial com-
plaint on shotgun pleading grounds. We aren’t persuaded.
In its order dismissing the initial complaint, the district court
explained that the initial complaint was a shotgun pleading be-
cause: each count reincorporated all the preceding allegations; it
inconsistently grouped the defendants; and it contained “repetitive
and confusing allegations, many of which appear[ed] to be irrele-
vant to [the] actual causes of action.” In its order dismissing the
amended complaint, the district court explained that the section
721.03(7)/section 721.08/section 736.1011 claim (count VII), the
section 721.08(2)(c)4. claim (count VIII), and the section
721.13/Florida Condominium Act claim (count XI) “fail[ed] to sep-
arate into different counts each cause of action or claim for relief”
and that it was unclear from the allegations in counts VII and VIII
“what conduct form[ed] the basis” of the Lennens’ claims against
each defendant.
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19-13215 Opinion of the Court 33
Although the pleading defects the district court identified in
the initial complaint differed somewhat from the pleading defects
it identified in the amended complaint, the district court’s order
dismissing the initial complaint explained each of the four types of
shotgun pleadings described in Weiland, including “the sin of not
separating into a different count each cause of action or claim for
relief.” The district court also directed the Lennens to “clearly set
forth each cause of action . . . against each named Defendant, the
legal basis for that cause of action, [] the factual allegations support-
ing their entitlement to recovery, [and to] . . . identify each Defend-
ant and clearly lay out which allegations pertain to which defend-
ants.” The district court’s order dismissing the initial complaint
gave the Lennens “fair notice” of the pleading defects that would
make their amended complaint a shotgun pleading. See Jackson,
898 F.3d at 1358.
Despite having notice of the four types of shotgun pleadings,
instructions on how to avoid dismissal, and an opportunity to re-
plead, the Lennens “squandered that opportunity by filing another
shotgun pleading.” See Barmapov v. Amuial, 986 F.3d 1321, 1326
(11th Cir. 2021). Thus, it wasn’t an abuse of discretion for the dis-
trict court to dismiss the section 721.03(7)/section 721.08/section
736.1011 claim (count VII), the section 721.08(2)(c)4. claim (count
VIII), and the section 721.13/Florida Condominium Act claim
(count XI) without leave to amend. See Jackson, 898 F.3d at 1358.
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34 Opinion of the Court 19-13215
The District Court’s Dismissal of Ten Claims for Failure to State a
Claim
The district court dismissed for failure to state a claim the
second and third declaratory relief claims (counts II and III), the
section 718.104 claim (count V), the section 721.57 claim (count
VI), the section 721.03(10) claim (count IX), the section 721.15
claim (count XII), and the first and second Florida RICO Act claims.
We affirm the dismissal as to each.
The second and third declaratory relief claims (counts II and III)
The Lennens argue that the district court erred in dismissing
the second declaratory relief claim (count II) because it: (1) re-
solved a disputed question of fact when it determined that the Len-
nens’ interests in the trust were beneficial interests in a land trust;
(2) concluded that the Lennens’ beneficial interests were interests
in real property under the Florida Land Trust Act and “timeshare
estates” under the Florida Timeshare Act even though the benefi-
cial interests were not “a physical piece of partitioned land”; and
(3) concluded that the Lennens’ beneficial interests were properly
conveyed by deed even though Marriott had conveyed legal title
to the trust property to First American. But the district court didn’t
err.
As we’ve already explained, the Lennens’ interests in the
trust were: (1) beneficial interests in a land trust and real property
under the Florida Land Trust Act, see Fla. Stat. §§ 689.071(2)(a)–(c),
(6); and (2) “timeshare estates” under the Florida Timeshare Act,
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19-13215 Opinion of the Court 35
see id. § 721.05(34). And as we’ve also already explained, the bene-
ficial interests were properly conveyed by deed. See Mendelson,
712 So. 2d at 1196.
That First American held legal and equitable title to the trust
property does not change the analysis. The Florida Land Trust Act
makes clear that “[t]he trustee’s legal and equitable title to the trust
property of a land trust is separate and distinct from the beneficial
interest of a beneficiary in the land trust and in the trust property.”
Fla. Stat. § 689.071(8)(d). Marriott transferred legal and equitable
title to the trust property to First American, as trustee for the MVC
Trust, but retained the beneficial interests—the very interests that
it then conveyed to purchasers. So, when Marriott conveyed its
beneficial interests in the trust to purchasers via deed (which it was
authorized to do under the trust agreement), legal title to the trust
property remained with First American.
As to the third declaratory relief claim (count III), the Len-
nens argue that the district court failed to address their alternate
basis for relief—that the policy was “void ab initio” because First
American couldn’t insure interests in a void trust. But as we’ve
already explained, Marriott created a valid land trust when it cre-
ated the MVC Trust. See id. § 689.071(2)(c). And the Lennens’
beneficial interests were real property and were validly conveyed
to the Lennens via deed.
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36 Opinion of the Court 19-13215
Section 718.104 claim (count V)
The Florida Condominium Act governs the “creation, sale,
and operation of condominiums.” Fla. Stat. § 718.102(2). A con-
dominium “is created by recording a declaration in the public rec-
ords of the county where the land is located.” Id. § 718.104(2). No
timeshare estates may be created with respect to any condomin-
ium unit unless the recorded declaration of condominium permits
their creation. See id. §§ 718.104(4)(o), 718.1045. To permit the
creation of timeshare estates, the declaration must “declar[e] that
timeshare estates will or may be created with respect to units in the
condominium” and “defin[e] and describe[e] in detail” the “degree,
quantity, nature, and extent of the timeshare estates that will be
created.” Id. § 718.104(4)(o).
The Lennens argue that the district court erred in dismissing
the section 718.104 claim (count V) because: (1) the “MVC Trust
product is sold as a timeshare estate created in a condominium”;
(2) the Florida Condominium Act does not “allow[] for an excep-
tion from timeshare estates created in condominiums subject to
pre-existing condominium declarations”; and (3) the district court
“disregarded” letters from the Florida Department of Business and
Professional Regulation that “expressly provid[e] that that the
MVC Trust is subject to the [Florida Condominium] Act.” We dis-
agree.
The Lennens alleged that their beneficial interests in the
MVC Trust were “illusory” because they weren’t created in com-
pliance with the Florida Condominium Act. But the trust didn’t
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19-13215 Opinion of the Court 37
create condominiums and therefore neither Marriott, the trust
owners’ association, nor First American were required to record
declarations of condominiums. See id. § 718.104. Nor was there
any requirement for the declarations for the condominiums held
by the trust to identify the trust. See id. § 718.04(4)(o). The district
court correctly concluded that the Florida Condominium Act
didn’t apply to the trust.
The district court also properly declined to consider the let-
ters in ruling on the motion to dismiss because the Lennens didn’t
attach them to the amended complaint, and they weren’t “central”
to the Lennens’ claims. See Day v. Taylor, 400 F.3d 1272, 1276
(11th Cir. 2005). And even if the letters could’ve properly been
considered by the district court in ruling on the motions to dismiss,
they wouldn’t support the Lennens’ claim. The letters stated only
that the Department of Business and Professional Regulation “ver-
ifie[d] [Marriot Ownership Resort’s] substantial compliance with
the filing and disclosure requirements of chapters 718 and 721, Flor-
ida Statutes, (as applicable)” (emphasis added). Contrary to the
Lennens’ characterization, the letters didn’t affirmatively indicate
that the Florida Condominium Act applied to the trust.
Section 721.57 claim (count VI)
Section 721.57 of the Florida Timeshare Act requires “[t]he
timeshare instrument of a multisite timeshare plan in which
timeshare estates are offered, other than a trust meeting the re-
quirements of [section] 721.08,” to include certain terms and states
that “[a]ny offering of timeshare estates in a multisite timeshare
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38 Opinion of the Court 19-13215
plan that does not comply with these requirements shall be
deemed to be an offering of a timeshare license.” Fla. Stat.
§ 721.57(1)–(2) (emphasis added). The Lennens argue that the dis-
trict court’s dismissal of their section 721.57 claim (count VI) was
“based on a clear misapprehension of the claim and controlling law
as to whether the MVC Trust is a valid multisite timeshare estate.”
But the amended complaint alleged that the trust violated
section 721.57 because: (1) the Lennens’ beneficial interests
weren’t real property; (2) the beneficial interests weren’t timeshare
estates; and (3) the trust didn’t comply with section 721.08. We’ve
already concluded that the beneficial interests were both real prop-
erty and timeshare estates. See id. §§ 689.071(2)(a)–(c), (6),
721.05(34). And as we’ve already explained, the Lennens didn’t
plausibly allege a violation of section 721.08 because they failed to
explain how First American wasn’t independent from Marriott.
And they didn’t sufficiently allege that First American didn’t verify
that the timeshare estates were free and clear of the claims of any
interestholders.
Section 721.03(10) claim (count IX)
Under section 721.03(10) of the Florida Timeshare Act, “[a]
developer or seller may not offer any number of timeshare interests
that would cause the total number of timeshare interests offered to
exceed a one-to-one use right to use night requirement ratio.” Fla.
Stat. § 721.03(10). This means that “the sum of the nights that own-
ers are entitled to use in a given 12-month period shall not exceed
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19-13215 Opinion of the Court 39
the number of nights available for use by those owners during the
same 12-month period.” Id. § 721.05(25).
The Lennens argue that the district court erred in dismissing
their section 721.03(10) claim (count IX) because: (1) whether the
trust complied with the one-to-one ratio requirement “cannot be
assessed” because “Marriott’s approach to point values is entirely
discretionary and undisclosed”; (2) “it [was] impossible to assess
what properties [were] actually available for reservations by MVC
Trust Owners” because the notices of addition “included restricted-
use properties”; and (3) the trust’s Points for Sale and Points for Use
didn’t take into account the points that the trust owners could
“bank” and “borrow” from one year to the next. But, as the district
court correctly noted, the Lennens’ allegations were undercut by
the terms of the trust agreement, which provided a method to gov-
ern point values and maintained the one-to-one ratio.
The trust agreement limited the number of “Points for
Sale”—i.e., the points available for purchase—to the number of
“Points for Use”—i.e., the points available to trust owners exercis-
ing their use rights. And the district court could assess what trust
properties were available for reservations because the trust agree-
ment provided that “[t]he total Points for Sale allocated to the
[t]rust [p]roperty [would] not change unless . . . a [n]otice [o]f [u]se
with respect to [newly added] property [was] delivered.”
Although the Lennens alleged that the trust couldn’t possi-
bly have maintained the one-to-one ratio, they didn’t allege a single
instance where the trust actually failed to do so. This is fatal to
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40 Opinion of the Court 19-13215
their claim. Other courts, considering similar schemes and similar
statutory requirements, have held that plaintiffs must identify at
least one instance of a violation to make their claim more than
mere speculation. See, e.g., Flynn v. Marriott Ownership Resorts,
Inc., 165 F. Supp. 3d 955, 976–77 (D. Haw. 2016) (dismissing a claim
based on a violation of Hawaii’s one-to-one ratio requirement
where the plaintiffs “d[id] not allege any instance when they were
unable to reserve any room of the type they purchased during any
week during their designated period”); Abramson v. Marriott
Ownership Resorts, Inc., 155 F. Supp. 3d 1056, 1065 (C.D. Cal.
2016) (dismissing a claim based on a violation of California’s
one-to-one ratio requirement for the same reason). We agree.
And while the Lennens now argue that the trust owners’
ability to “bank” and “borrow” points from one year to the next
made it impossible for the trust to comply with the one-to-one ra-
tio, they failed to allege this in their complaint. See Bickley v. Care-
mark RX, Inc., 461 F.3d 1325, 1329 n.7 (11th Cir. 2006) (“A court is
generally limited to reviewing what is within the four corners of
the complaint on a motion to dismiss.”); S. Walk at Broadlands
Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands, LLC, 713
F.3d 175, 184 (4th Cir. 2013) (“It is well-established that parties can-
not amend their complaints through briefing or oral advocacy.”).
Section 721.15 claim (count XII)
The Lennens alleged that Marriott and the trust owners’ as-
sociation violated section 721.15 by “unfairly” allocating common
expenses for restricted-use properties differently than they did for
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19-13215 Opinion of the Court 41
other trust property. The district court dismissed this claim be-
cause section 721.15 permits a different allocation of expenses for
properties not yet included in a timeshare plan:
The timeshare instrument may provide that the com-
mon expenses allocated may differ between those
timeshare units that are part of the timeshare plan and
those units that are not part of the timeshare plan;
however, the different proportion of expenses must
be based upon reasonable differences in the benefit
provided to each.
Fla. Stat. § 721.15(1)(a).
The Lennens argue that the district court erred because re-
stricted-use properties were still part of the “trust property.” But a
“timeshare plan” is defined as an “agreement . . . whereby a pur-
chaser, for consideration, receives ownership rights in or a right to
use accommodations, and facilities.” Id. § 721.05(39) (emphasis
added). And under the trust agreement, trust owners didn’t have a
right to use the restricted properties until Marriott delivered a no-
tice of use rights. Thus, restricted-use properties weren’t part of
the “timeshare plan,” and Marriott and the trust owners’ associa-
tion were permitted to allocate the share of expenses for those
properties differently.
The first and second Florida RICO Act claims
The Lennens concede that their first and second Florida
RICO Act claims rise or fall with the section 721.57 claim (count
VI), the section 721.03(7)/section 721.08/section 736.1011 claim
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42 Opinion of the Court 19-13215
(count VII), and the section 721.08(2)(c)4. claim (count VIII). Be-
cause the section 721.57 claim (count VI) was properly dismissed
for failure to state a claim, and the section 721.03(7)/section
721.08/section 736.1011 claim (count VII) and the section
721.08(2)(c)4. claim (count VIII) were properly dismissed as shot-
gun pleadings, the district court didn’t err in dismissing the deriva-
tive Florida RICO Act claims as well. See Eagletech Commc’ns,
Inc. v. Bryn Mawr Inv. Grp., Inc., 79 So. 3d 855, 864 (Fla. Dist. Ct.
App. 2012) (“[T]o bring a RICO action in Florida . . . . [A] plaintiff
must plead the necessary predicate acts or continuity of en-
deavor.”).
The District Court’s Summary Judgment on the Negligence
Claim (Count IV)
Finally, the Lennens argue that the district court erred by
granting summary judgment for Orange County on the negligence
claim (count IV) because it: (1) misconstrued their negligence
claim as a statutory claim under section 28.222; (2) misinterpreted
section 28.222 “as mandating the recording of any instrument”; and
(3) resolved disputed issues of fact concerning the trust documents’
“legitimacy” and the county’s conduct in recording and indexing
them. We affirm the district court’s grant of summary judgment
because the county was not negligent as a matter of law.
The Lennens’ claim fails because, even if the trust docu-
ments were legally deficient, the county had no discretion to reject
them for recording. Section 28.222 states that, “[u]pon payment of
the service charges prescribed by law,” the clerk “shall record . . .
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19-13215 Opinion of the Court 43
[d]eeds . . . agreements . . . and other instruments relating to the
ownership, transfer or encumbrance of or claims against real or
personal property or any interest in it.” Fla. Stat. § 28.222(3)(a)
(emphasis added). 8 “Shall” means “must,” not “may” or “can.” See
Phillips v. Pritchett Trucking, Inc., ___ So. 3d ____, 2021 WL
4582131, at *1 (Fla. Dist. Ct. App. Oct. 6, 2021) (“Although there is
no fixed construction of the word ‘shall,’ it is normally meant to be
mandatory in nature.” (quoting S.R. v. State, 346 So. 2d 1018, 1019
(Fla. 1977))). For this reason, Florida courts have explained that
“[a] clerk acts in a purely ministerial capacity, and has no discretion
to pass upon the sufficiency of the documents presented for filing.”
Ferlita v. State, 380 So. 2d 1118, 1119 (Fla. Dist. Ct. App. 1980); see,
e.g., City of Miami v. Piper, 306 So. 3d 156, 158 (Fla. Dist. Ct. App.
2020) (“The use of the word ‘shall’ only reinforces that the clerk’s
responsibility is ministerial.”); Coral Gables Imports, Inc. v. Suarez,
306 So. 3d 348, 351 (Fla. Dist. Ct. App. 2020) (“It is well-established
that the clerk of courts is a ministerial officer of the court and, as
such, is not endowed with any discretion.”). Therefore, if the trust
documents were properly executed and formatted, see Fla. Stat.
§ 695.26, the county was required to record them, see id.
§ 28.222(3). Because the Lennens don’t dispute that the trust
8 The Lennens argue that section 28.222 didn’t authorize the county to record
documents relating to real property located outside of Orange County or to
record facially defective documents. But they haven’t identified any author-
ity—statutory or otherwise—for this proposition.
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44 Opinion of the Court 19-13215
documents were properly executed and formatted, the county was
required to record them.
Even so, the Lennens contend that the county lacked statu-
tory authority to record the notices of addition and their deed be-
cause these documents lacked “a legal description of a parcel of real
property.” But because the Lennens’ beneficial interests in the
trust and the trust property were real property, see id. § 689.071(6),
the notices of addition and their deed were “instruments relating
to the ownership, transfer, or encumbrance of . . . real . . . property
or any interest in it,” see id. § 28.222(3)(a). Therefore, even if the
deed and notices of addition lacked valid legal descriptions (which,
as we’ve concluded, they didn’t) the county “ha[d] no discretion to
pass upon the sufficiency of the documents presented for filing.”
Ferlita, 380 So. 2d at 1119.
For similar reasons, the Lennens’ claim also fails to the ex-
tent it is based on the county’s allegedly improper assessment of
documentary stamp taxes. Like the recording statute, the statue
governing the county’s assessment of documentary stamp taxes
was mandatory: “documentary stamp taxes shall be paid on all re-
cordable instruments requiring documentary stamp tax according
to law, prior to recordation.” Fla. Stat. § 201.01 (emphasis added).
Because the Lennens’ deed and the trust documents were recorda-
ble, the county was required to assess documentary stamp taxes
prior to recordation. Accordingly, the district court correctly
granted summary judgment on this claim.
AFFIRMED.