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Filing # 196110303 E-Filed 04/12/2024 03:40:59 PM
IN THE CIRCUIT COURT OF THE 11TH
JUDICIAL CIRCUIT, IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
PGT INNOVATIONS, INC., ECO COMPLEX BUSINESS LITIGATION
ENTERPRISES, LLC, ECO GLASS DIVISION
PRODUCTION, LLC, ECO WINDOW
SYSTEMS, LLC, and UNITY WINDOWS, CASE NO.: 2023-027931-CA-01
LLC,
Plaintiffs,
v.
ALL GLASS PRODUCTION, LLC, FRANK
MATA, SAMUEL BRAVO, and NEW
WINDOWS OF MIAMI, LLC,
Defendants.
PLAINTIFFS’ OPPOSITION TO NEW WINDOW’S MOTION
FOR SUMMARY JUDGMENT, AND, IN THE ALTERNATIVE,
TO DISMISS COUNTS II-VI OF THE AMENDED COMPLAINT
Plaintiffs PGT Innovations, Inc. (“PGT”), Eco Enterprises, LLC, Eco Glass Production,
LLC, Eco Window Systems, LLC, and Unity Windows, LLC (collectively, the “Plaintiffs”), 1
respectfully file this Opposition to the Motion for Summary Judgment, and, in the Alternative, to
Dismiss Counts III-VI of the Amended Complaint (the “Motion”) filed by Defendant New
Windows of Miami, LLC (“New Windows”).
INTRODUCTION
New Windows’ Motion seeking summary judgment against Plaintiffs is based on a
fundamental misinterpretation of contracts to which New Windows is not even a party. First, New
Windows’ incorrectly argues that an Operating Agreement for the Eco Companies (which New
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Eco Enterprises, LLC, Eco Glass Production, LLC, Eco Window Systems, LLC, and
Unity Windows, LLC are collectively referred to herein as the “Eco Companies.”
Windows’ calls the “LLC Agreement”) superseded and replaced a Purchase Agreement between
PGT, the Eco Companies, and Mr. Mata. But the plain language of both agreements clearly
establishes the Operating Agreement is, by definition, an “ancillary agreement” to the Purchase
Agreement and that the Purchase Agreement was never intended to be superseded by the ancillary
Operating Agreement.
Second, New Windows tries to invoke a “No Recourse” provision in the agreements to
shield it from being sued. However, the No Recourse provision, by its plain language, was intended
to protect persons affiliated with the parties and involved in the purchase transaction such as
“equityholders, partners, members, controlling persons, directors, officers, employees,
incorporators,” etc., defined as “Non-Party Affiliates,” from being sued in connection with the
transaction. Purchase Agmt. § 14.11. But New Windows, which did not even exist at the time of
either agreement and played no role in the purchase transaction, is not a “Non-Party Affiliate”
covered by the No Recourse clause. Further, New Windows interprets the No Recourse provision
as prohibiting Plaintiffs from forever suing any person or entity in the world for anything having
to do with Plaintiffs or their business. This unreasonable interpretation, however, would lead to an
absurd result and must be rejected under Florida’s rules of contract construction.
Third, New Windows is not an intended third-party beneficiary under either agreement,
and therefore has no standing to enforce those agreements against Plaintiffs. Also, even if New
Windows had such standing, its attempt to use the No Recourse provision to exculpate it from
liability for intentional torts renders the provision void against public policy and unenforceable.
Finally, New Windows, in the alternative, moves to dismiss certain counts in Plaintiffs’
Amended Complaint, but all of these arguments lack merit. For these reasons, New Windows’
Motion must be denied.
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FACTUAL SUMMARY
Through certain Plaintiff entities,2 Plaintiffs are engaged in the business of manufacturing,
selling, and installing glass windows and doors. Plaintiff PGT acquired this business from
Defendant Frank Mata for approximately $140 million. The crux of Plaintiffs’ Amended
Complaint is that Defendants Mata and Sam Bravo are violating contractual restrictive covenants
by directly or indirectly engaging in a competing enterprise that manufactures and sells glass
windows and doors—Defendant New Windows—and by soliciting certain of Plaintiffs’ current
and former employees to work at New Windows. Plaintiffs’ Amended Complaint includes claims
relating to breach of these restrictive covenants, as well as claims for the intentional torts of
conversion and civil conspiracy.
There are two agreements relevant to New Windows’ Motion: a 2021 Purchase Agreement
and a 2021 Operating Agreement for the Eco Companies. Neither of these agreements support
New Windows’ Motion.
A. The 2021 Purchase Agreement
On January 7, 2021, PGT entered into a Purchase Agreement (attached hereto as Exhibit
A) with Mata and the Eco Companies for PGT to acquire the Eco Companies from Mata and
another seller. As part of that transaction, some of the parties entered into several Ancillary
Agreements, none of which take precedence over the Purchase Agreement. The Purchase
Agreement contains the restrictive covenants that are the focus of Plaintiffs’ claims for injunctive
relief against the Defendants. See Purchase Agmt. § 6.9. Further, Section 6.9(d) of the Purchase
Agreement provides that PGT and the Eco Companies are “entitled to seek temporary and/or
2
These include Eco Window Systems, LLC, and Unity Windows, LLC, as well as other
PGT companies.
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permanent injunctive relief restraining Mata, the Sellers or any other Person from any activities
that might result in or continue a breach of this Section 6.9 ….”
B. The New Eco Windows Holding, LLC Agreement
One of the Ancillary Agreements to the Purchase Agreement is the Limited Liability
Company Agreement of New Eco Windows Holding, LLC. While this agreement is referred to in
the Motion as the “LLC Agreement,” the Purchase Agreement refers to the LLC Agreement as the
“Operating Agreement.” (A copy of the Operating Agreement is attached as Exhibit B.) The
Operating Agreement concerns the Eco Companies acquired by PGT via the Purchase
Agreement—specifically New Eco Windows Holding, LLC (n/k/a Eco Enterprises, LLC)—and is
intended to “govern the operations and affairs of” New Eco Windows and its subsidiaries.
Operating Agmt. at 1. The Operating Agreement is referenced throughout the Purchase Agreement.
For example:
• Section 1.1 of the Purchase Agreement defines “Ancillary Agreements” to include
the “Operating Agreement.” Purchase Agmt. § 1.1.
• Section 1.1 also defines the “Operating Agreement” as the agreement “substantially
in the form attached hereto as Exhibit H.” Id.
• A copy of the Operating Agreement is, in fact, attached to the Purchase Agreement
as Exhibit H.
• Section 10.1(e) governing the “Closing Deliveries of Sellers” requires Mata to
deliver a duly executed Operating Agreement at or prior to closing, and Section
10.2(e), governing “Closing Deliveries of Buyer,” requires PGT to deliver an
executed Operating Agreement. Id. §§ 10.1(e) and 10.2(e).
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• Section 14.9 makes clear that the “Exhibits” and “Ancillary Agreements,” both of
which include the Operating Agreement, are part of the Purchase Agreement. Id. §
14.9.
Consequently, far from being a prior or superseding agreement as New Windows contends,
the Operating Agreement is part of the Purchase Agreement. Id. And, contrary to New Windows’
Motion, the Operating Agreement was never intended to “supersede” the Purchase Agreement. On
the same day the Operating Agreement was executed—February 1, 2021—the Purchase
Agreement was amended, ratified, and re-confirmed. (A copy of the First Amendment to the
Purchase Agreement is attached as Exhibit C.) As a result, the Purchase Agreement is not a “prior
agreement” with respect to the Operating Agreement.
C. New Windows of Miami, LLC
New Windows brings this Motion in an attempt to enforce provisions in the Purchase
Agreement and the Operating Agreement against Plaintiffs. Significantly, New Windows is not a
party to either agreement, and did not even exist at the time of the agreements’ execution. Indeed,
New Windows was not founded until November 22, 2021, more than ten months later.
ARGUMENT
I. NEW WINDOWS IS NOT ENTITLED TO SUMMARY JUDGMENT.
New Windows’ Motion for summary judgment is unwarranted and based on a complete
misreading and miscomprehension of the Purchase Agreement and Operating Agreement.
A. The Operating Agreement Did Not “Supersede” the Purchase Agreement.
A fundamental premise behind Defendants’ Motion is that the Operating Agreement
supersedes the Purchase Agreement because it was executed later in time and contains a merger
clause. This premise is false.
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New Window’s argument is based on the Operating Agreement’s “Entire Agreement”
clause in Section 14.14, which states:
This Agreement, those documents expressly referred to herein and other
documents dated as of even date herewith embody the complete agreement and
understanding among the parties and supersede and preempt any prior
understandings, agreements or representations by or among the parties, written or
oral, which may have related to the subject matter hereof in any way.
Operating Agmt. § 14.14 (emphasis added). However, the plain language of this provision refutes
New Windows’ position.
For one, the “Agreement” in Section 14.14 includes “those documents expressly referred
to herein.” Id. (emphasis added). The Purchase Agreement is expressly referenced in Section 1.1.
of the Operating Agreement at page 16. Operating Agmt. § 1.1 (defining “Purchase Agreement”
as “that certain Purchase Agreement entered into as of January 7, 2021 by and among the
Company, PGT Member, and the Minority Members.”). It is expressly referenced again in Section
13.4 of the Operating Agreement. This alone takes the Purchase Agreement outside the Operating
Agreement’s merger clause. It also makes clear that the Purchase Agreement is part of the entire
“Agreement,” and not one of the superseded prior agreements or understandings referred to in
Section 14.14. Further, Section 14.14 is consistent with Section 14.9 of the Purchase Agreement,
which makes the “Exhibits” and “Ancillary Agreements” (including the Operating Agreement)
part of the complete Purchase Agreement. See Purchase Agmt. §§ 1.1 and 14.9.
Second, the Purchase Agreement is not a “prior agreement” since the Purchase Agreement
was amended and re-confirmed on the same day the Operating Agreement was executed—
February 1, 2021. Consequently, New Windows’ reliance on Section 14.4’s mention of “prior
understandings, agreements or representations” between the parties is misplaced. New Windows’
interpretation also flies in the face of the plain language of the Purchase Agreement, which makes
clear that the parties intended the Operating Agreement to be ancillary (i.e., subordinate to) the
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Purchase Agreement.
Third, the Purchase Agreement and Operating Agreement do not concern the same subject
matter, which is an express requirement of Section 14.14 for the Operating Agreement to supersede
a prior agreement. See Operating Agmt. § 14.14 (superseded agreements must “have related to the
subject matter” of the Operating Agreement). The Purchase Agreement concerns PGT’s purchase
of a majority (and ultimately, the entirety) of the Eco Companies from Mr. Mata for more than
$140 million. The Operating Agreement, by contrast, governs the operations and affairs of New
Eco Windows Holding, LLC, and its subsidiaries. Where two contracts concern different subject
matters, an older agreement is not merged into or extinguished by the subsequent agreement. See
Franz Tractor Co. v. J.I. Case Co., 566 So. 2d 524, 525 Fla. 2d DCA 1990) (“Although a contract
may be merged into and extinguished by a later contract covering the same subject matter, … this
is not true if the new contract embraces a different subject matter without fully covering the terms
of the original.”) (internal citations omitted). Therefore, there is no way legally or under the
agreements’ plain language that the Operating Agreement can supersede the Purchase Agreement.
Finally, Coastal Loading, Inc. v. Title Roof Loading, Inc., cited by New Windows, does not
change this conclusion. 908 So. 2d 609 (Fla. 2d DCA 2005). In Coastal Loading, a 2004 asset
purchase agreement between the parties contemplated that the seller would be bound by a non-
compete; however the terms of the non-compete were not memorialized until the parties entered
into an “Agreement Not to Compete” at the closing of the asset purchase transaction. Id. at 610-
611. In fact, the asset purchase agreement “reflect[ed] that at closing the parties would enter into
a separate agreement not to compete.” Id. at 612. The case concerned whether the defendant’s
conduct fell within the scope of the activities prohibited by the non-compete agreement. Id. The
issue was never whether the non-compete agreement superseded or replaced the asset purchase
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agreement, and therefore Coastal Loading has no relevance to the present action.
In sum, there is no merit to New Windows’ argument that the Operating Agreement
superseded the Purchase Agreement.
B. Neither the Purchase Agreement nor the Operating Agreement Bar Plaintiffs’
Claims Against New Windows.
1. The Purchase Agreement Authorizes Injunctive Relief Against New
Windows.
New Windows concedes, as it must, that Section 6.9(d) of the Purchase Agreement permits
Plaintiffs “to seek injunctive relief against any person to prohibit the breach of continued breach”
of the restrictive covenants in Section 6.9. Motion at 3. Because the Purchase Agreement is not
superseded by the Operating Agreement, Section 6.9(d) remains in full force and effect and permits
Plaintiffs’ claims seeking injunctive relief against New Windows.3
2. The “No Recourse” Clause in the Purchase Agreement Does Not Bar
Plaintiffs’ Claims Against New Windows.
New Windows—who is not a party to the Purchase Agreement or the Operating
Agreement—is trying to enforce a “No Recourse” clause in those agreements to argue that
Plaintiffs cannot sue New Windows. The “purpose of a No Recourse clause is to expressly exclude
persons that may have played a role in the M&A transaction from liability for party obligations
under the agreement or from claims based on or arising from the agreement brought by a party to
the agreement.” See Bloomberg Law, M&A, Clause Description – No Recourse, bn:blawpg 1700
3
As noted earlier, New Window’s entire argument is based on the Operating Agreement
superseding the Purchase Agreement, which is did not happen. New Windows then proceeds to
misread the Operating Agreement and argue a combination of a narrower injunction clause in the
Operating Agreement’s restrictive covenants coupled with an improper interpretation of the
agreements “No Recourse” clause (Operating Agmt. § 14.19) precludes the claims against it.
However, these argument lack merit because Plaintiffs’ claims arise under the Purchase
Agreement, which has never been superseded.
8
cd 89214, p. 1 “Purpose of the Clause” (last visited Mar. 20, 2024).
Here, Plaintiffs are suing to enforce the Purchase Agreement’s restrictive covenants, which
makes the Purchase Agreement the operative agreement governing Plaintiffs’ claims.4 The No
Recourse provision in Section 14.11 of the Purchase Agreement states:
Notwithstanding any other provision of this Agreement, except to the extent
otherwise agreed in writing, no claim (whether at law or in equity, whether in
contract, tort, statute or otherwise) may be asserted by Mata, the Company
Members, Sellers, Buyer, any Affiliate of any of the foregoing (including, with
respect to Buyer, from and after the Closing, any Company Member) or any Person
claiming by, through or for the benefit of any of them, against any Person who is
not a party to this Agreement, including any equityholders, partners,
members, controlling persons, directors, officers, employees, incorporators,
managers, agents, Representatives or Affiliates of Buyer or any Company
Member, Mata, Sellers or the heirs, executors, administrators, successors or
assigns of any of the foregoing (or any Affiliate of the foregoing) that is not a
party to this Agreement (each a “Non-Party Affiliate”) with respect to matters
arising out of, related to, based upon, or in connection with the business of the
Company Members, the Company Members, this Agreement, the Ancillary
Agreements or their subject matter or the transactions contemplated hereby or
thereby or with respect to any actual or alleged inaccuracies, misstatements or
omissions with respect to information furnished by or on behalf of the
Company Members or any Non-Party Affiliate concerning the business of the
Company Members, the Company Members, this Agreement or its subject
matter, the Ancillary Agreements or the transactions contemplated hereby or
thereby.
Purchase Agmt. § 14.11 (emphasis added).
Significantly, the No Recourse clause identifies the types of non-party “Person[s]”
associated with the transaction that it is intended to cover—i.e., “equityholders, partners,
members, controlling persons, directors, officers, employees, incorporators, managers, agents,
Representative or Affiliates of Buyer or any Company Member, Mata, Sellers of the heirs,
4
Regardless, the specific “No Recourse” provision New Windows is attempting to enforce
and substantially similar. Compare Purchase Agmt. § 14.11 with Operating Agmt. § 14.19.
Plaintiffs’ arguments in opposition to New Window’s position would apply equally to both the
Purchase Agreement and the Operating Agreement.
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executors, administrators, successors or assigns of any of the foregoing … .” Id (emphasis
added). Furthermore, the provision proceeds to define each of these people as a “Non-Party
Affiliate” –i.e., a non-party who is affiliated with a party at the time of the purchase. Id. The No
Recourse clause then protects these “Non-Party Affiliates” with respect to claims concerning
aspects of the transaction such as “actual or alleged inaccuracies, misstatements or omission with
respect to information furnished by or on behalf of the Company Members or any Non-Party
Affiliate … .” Id. (emphasis added).
In simpler terms, the intent of the No Recourse provision was to protect a party’s affiliates
who participated or provided information relied upon or used in the purchase transaction from
being sued; instead, the parties agreed to only sue one another if information used in the transaction
was inaccurate, misstated, or omitted. This is the only reasonable interpretation of this provision,
and it is consistent with both the purpose of a No Recourse clause in an M&A transaction and the
stated purpose of the Purchase Agreement itself, which was to effect PGT’s purchase of the Eco
Companies from Mr. Mata.
a. New Windows’ Interpretation of the No Recourse Clause is
Contrary to the Rules of Contract Construction and Would
Lead to Absurd Results.
New Windows—which played no role in the purchase transaction and was not even in
existence at the time the Purchase Agreement was executed—is not, and cannot, be a “Non-Party
Affiliate” that the No Recourse clause was intended to protect. Nonetheless, New Windows, would
have this Court interpret the No Recourse clause to prohibit any of the Plaintiff companies from
ever suing any “Person” other than parties to the Purchase Agreement for anything having to do
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with Plaintiffs’ business from the date of the Purchase Agreement to the end of time. 5 This
interpretation is contrary to the rules of contract construction and would lead to absolutely absurd
results.
Under Florida law, a “reasonable interpretation is preferred over one which is
unreasonable, and an interpretation that leads to an absurd result or that nullifies other provisions
of the contract should be avoided.” Morrison v. Morrison, 247 So. 3d 604, 608 (Fla. 2d DCA
2018); see also Burlington & Rockenbach, P.A. v. Law Offices of E. Clay Parker, 160 So. 3d 955,
958 (Fla. 5th DCA 2015) (a “contract should not be interpreted to achieve an absurd result.”). New
Windows’ interpretation that the No Recourse clause forever prohibits Plaintiffs from suing any
non-parties for anything having to do with Plaintiffs’ business is unreasonable and would lead to
absurd results. For example, under New Windows’ interpretation:
• If a customer bought tens of thousands of dollars of windows from Plaintiffs and
then refused to pay its bill, Plaintiffs could not sue.
• If a third-party broke into one of Plaintiffs’ warehouse and stole Plaintiffs’ products
or raw materials, Plaintiffs could not sue.
• If a third party (like New Windows) conspired with Eco Company employees to
misappropriate glass product or employee time, Plaintiffs could not sue.
• If a governmental entity (which is included in the definition of “Person” in the
Purchase Agreement) levied an illegal fine or seized Plaintiffs’ business property,
Plaintiffs could not sue.
• If a third party libeled and slandered Plaintiffs’ business, Plaintiffs could not sue.
5
Section 1.1. of the Purchase Agreement defines “Person” as “any individual, corporation,
partnership, limited liability company, firm, joint venture, association, joint-stock company, trust,
unincorporated organization, Governmental Authority or other entity.” Purchase Agmt. § 1.1.
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Such an absurd interpretation must be abandoned as a matter of law in favor of a reasonable
interpretation that is consistent with the Purchase Agreement’s stated purpose. See Interline
Brands, Inc. v. Chartis Specialty Ins. Co., 749 F.3d 962, 965 (11th Cir. 2014) (“Under Florida law,
‘if one interpretation looking to the other provisions of the contract and to its general object and
scope would lead to an absurd conclusion, such interpretation must be abandoned, and that
adopted which will be more consistent with reason and probability.’”) (citation omitted) (emphasis
added); Am. K-9 Detection Servs, Inc. v. Cicero, 100 So. 3d 236, 238 (Fla. 5th DCA 2012) (“[T]he
goal is to arrive at a reasonable interpretation of the text of the entire agreement to accomplish its
stated meaning and purpose.”).
The plain reading of the No Recourse provision applying to “Non-Party Affiliates” who
took part in the purchase transaction is the only reasonable interpretation that is consistent with
purpose of the Purchase Agreement—i.e., to effect PGT’s purchase of the Eco Companies from
Mr. Mata. The stated purpose of the Purchase Agreement was not to prohibit PGT and the Eco
Companies from ever suing anyone—from 2021 until the end of time—who harmed PGT and the
Eco Companies’ business. Simply put, no rationale actor would ever agree to such an absurd
provision.
Further, “a contract will not be interpreted in such a way to render a provision meaningless
when there is a reasonable interpretation that does not do so.” Universal Prop. And Cas. Ins. Co.
v. Johnson, 114 So. 3d 1031, 1036 (Fla. 1st DCA 2013) (quoting Moore v. State Farm Mut. Auto.
Ins. Co., 916 So. 2d 871, 877 (Fla. 2d DCA 2013)); see also Morrison, 247 So. 3d at 608 (“an
interpretation that . . . nullifies other provisions of the contract should be avoided.”). However, if
any “Person who is not a party to this Agreement” in the No Recourse clause literally meant any
person or entity in the entire world, as New Windows’ contends, there would have been no need
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to specifically list “equityholders, partners, members, controlling persons, directors, officers,
employees, incorporators,” etc., and then define them as each as a “Non-Party Affiliate.” In other
words, if “Person” meant “anyone,” the list that follows would be utterly superfluous. However,
when properly applying the rules of contract construction, the list of “equityhloders, partners,” etc.
has meaning because it modifies the phase “Persons who are not a party to this Agreement” to
limit the provision to “Non-Party Affiliates” associated with the purchase transaction.
Consequently, while New Window’s interpretation would render this list meaningless, this
interpretation of “Person who is not a party to this Agreement” gives meaning to the list of
individuals and the defined term “Non-Party Affiliate” in the provision, as required by the
Florida’s rules of contract construction.
Finally, New Windows is trying to use the No Recourse clause as an exculpatory clause to
shield it from liability. But under Florida law, “[exculpatory] clauses are strictly construed against
the party seeking to be relieved of liability.” Estate of Blakely by and through Wilson v. Stetson
Univ., Inc., 355 So. 3d 476, 479 (Fla. 5th DCA 2022). Under this principle, too, New Windows’
absurd and unreasonable interpretation of the No Recourse provision must be rejected. For all these
reasons, the No Recourse clause in Section 14.11 of the Purchase Agreement does not shield New
Windows from liability in this case.
b. New Windows is Not an Intended Third-Party Beneficiary and
Therefore Cannot Enforce the No Recourse Clause.
In addition to offering an interpretation that violates the principles of contract construction,
New Windows—a non-party to the Purchase Agreement—cannot enforce the agreement because
it is not an intended third-party beneficiary.
“A third party is an intended beneficiary, and thus able to sue on a contract, only if the
parties to the contract intended to primarily and directly benefit the third party.” Fl. Power & Light
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Co. v. Road Rock, Inc., 920 So. 2d 201, 203 (2006) (emphasis added and internal quotation marks
omitted) (quoting Aetna Cas. & Sur. Co. v. Jelac Corp., 505 So. 2d 37, 38 (Fla. 4th DCA 1987)).
The Purchase Agreement was not intended to primarily and directly benefit New Windows, which
did not even exist at the time of the Purchase Agreement and therefore could have played no role
in the purchase transaction.
Further, the Purchase Agreement disclaims that entities such as New Windows could ever
be intended third-party beneficiaries:
Except as specifically set forth or referred to herein, nothing herein expressed or
implied is intended or shall be construed to confer upon or give to any Person, other
than the parties hereto and their permitted successors and assigns, any rights or
remedies under or by reason of this Agreement or any other certificate, document,
instrument or agreement executed in connection herewith nor be relied upon other
than the parties hereto and their permitted successors or assigns.
Purchase Agmt. § 14.4 (emphasis added). The only types of people specifically mentioned in the
No Recourse clause are “equityholders, partners, members, controlling persons, directors, officers,
employees, incorporators, managers, agents, Representative or Affiliates of Buyer or any
Company Member, Mata, Sellers or the heirs, executors, administrators, successors or assigns of
any of the foregoing . . . .” Purchase Agmt. § 14.11. None of these persons or entities would include
New Windows. And, again, New Windows did not even exist at the time of the Purchase
Agreement, so it could not have been a specifically referenced, intended third-party beneficiary,
and therefore has no standing to invoke the No Recourse provision (however New Windows’
misinterprets it) against Plaintiffs.
c. Even if New Windows Could Invoke the No Recourse Clause,
Using it to Exempt It from Liability for Intentional Torts is
Contrary to Public Policy.
Even if the No Recourse provision was intended to cover New Windows (which it was
not), and even if New Windows could invoke that provision in defense (which it cannot), New
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Windows is attempting to use the No Recourse clause to exculpate it for liability for intentional
torts, namely conversion (Am. Compl. Count V) and civil conspiracy to commit conversion (Am.
Compl. Count VI).6 It is well settled that an exculpatory clause “exempt[ing a party] from liability
for an intentional tort” is “void as against public policy.” Mankap Enters., Inc. v. Wells Fargo
Alarm Servs, a Div. of Baker Protective Servs., Inc., 427 So. 2d 332, 334 (Fla. 3d DCA 1983); see
also Fuentes v. Owen, 310 So. 2d 458, 460 (Fla. 3d DCA 1975) (an exculpatory clause’s “attempt
to exempt one from liability for an intentional tort is generally declared void.”). For this reason,
the No Recourse clause is unenforceable to the extent New Windows is attempting to use it to
avoid liability for these intentional torts. See Loewe v. Seagate Homes, Inc., 987 So. 2d 758, 760
(Fla. 4th DCA 2008) (an “exculpatory clause is obviously unenforceable to the extent that it
attempts to release [a person] of liability for an intentional tort.”).
3. New Windows is Not Entitled to Summary Judgment on Damages.
New Windows argues that if the Purchase Agreement controls this case, it is still entitled
to summary judgment on damages. Mot. at 14. This erroneous argument is based on New
Windows’ improper interpretation that the No Recourse clause bars all claims against it.7 As noted
above, the No Recourse clause does not bar Plaintiffs’ claims against New Windows, and therefore
New Windows is not entitled to summary judgment on the issue of damages.
II. NEW WINDOWS IS NOT ENTITLED TO DISMISSAL OF ANY CLAIMS AGAINST IT.
In alternative to its argument on summary judgment, New Windows moves to dismiss
Amended Complaint Counts III and IV (Aiding and Abetting Breach of Restrictive Covenants),
6
Conversion is an “intentional tort” under Florida law. See Indem. Ins. Co. of N. Am. v. Am.
Aviation, Inc., 891 So.2d 532, 543 n.3 (Fla. 2004).
7
Again, New Windows concedes that the Purchase Agreement expressly permits claims
for injunction relief against non-parties to enforce the restrictive covenants. Mot. at 15.
15
Count V (Conversion), and Count VI (Civil Conspiracy). None of these arguments have merit.
A. Legal Standard on Motion to Dismiss
“A motion to dismiss is designed to test the legal sufficiency of the complaint, not to
determine factual issues, and the allegations of the complaint must be taken as true and all
reasonable inferences therefrom construed in favor of the nonmoving party.” The Fla. Bar v.
Greene, 926 So. 2d 1195, 1199 (Fla. 2006). When ruling on a motion to dismiss for failure to state
a claim, the court “must look only to the four corners of the complaint,” and the “allegations
contained therein should be taken as true without regard to the pleader’s ability to prove them.”
Coriat v. Global Assurance Grp., 862 So. 2d 743, 743 (Fla. 3d DCA 2003).
B. Count III and IV State Cognizable Claims for Relief Because Aiding and
Abetting Breach of a Restricted Covenant is a Cause of Action Under Florida
Law.
Contrary to New Windows’ argument, aiding and abetting breach of a restrictive covenant
is a recognized cause of action under Florida law. New Windows fails to cite a single Florida case
in support of their proposition that courts have “rejected” claims “alleging that someone aided and
abetted another person’s breach of contract[.]” Mot. at 17. Instead, New Window’s cites a slew of
out-of-state cases from jurisdictions such as Oregon, Arizona, California, Michigan, Pennsylvania,
New York, Illinois, and Wisconsin. Even more, none of their cited cases apply Florida law. This
is significant because Florida law is directly contrary to Defendants’ asserted position.
“Florida law recognizes claims for aiding and abetting a breach of a restrictive covenant
by a third party.” LLW Enter., LLC v. Ryan, No. 8:19-cv-1641-T-35AAS, 2020 WL 2630859, at
*5 (M.D. Fla. May 4, 2023) (noting that “Plaintiff’s claim is one of aiding and abetting a breach
of contract … .”) (emphasis added); see also Family Heritage Life Ins. Co. of Am. v. Combined
Ins. Co. of Am., 319 So. 3d 680, 685 (Fla. 3d DCA 2021) (quoting Winmark Corp. v. Brenoby
Sports, Inc., 32 F. Supp. 3d 1206, 1221 (S.D. Fla. 2014)) (“The Court can enjoin non-parties to the
16
non-compete agreement, such as a family member of the signator or an alter ego corporation,
where the non-party is either under the signator’s control or otherwise being used to aid or abet
the signator in violating the non-compete clause.”); Dad’s Props., Inc. v. Lucas, 545 So. 2d 926,
928 (Fla. 2d DCA 1989) (“[I]ndividuals and entities may be enjoined from aiding and abetting a
covenantor in violating a covenant not to compete.”) (emphasis added); Temporarily Yours-
Temporary Help Servs., Inc. v. Manpower, Inc., 377 So. 2d 825, 827 (Fla. 1st DCA 1979) (holding
that the district court properly enjoined a non-signatory for “aiding and asissting” the signatory “in
violating his not to compete.”); West Shore Rest. Corp. v. Turk, 101 So. 2d 123, 129 (Fla. 1958)
(“[T]he rule that a stranger to a covenant may be enjoined from aiding and assisting the covenantor
in violating his covenant is supported by an overwhelming weight of authority.”). The Florida
Rules of Civil Procedure also explicitly contemplate such relief, explaining that an injunction
“shall be binding on the parties to the action, their officers, agents, servants, employees, and
attorneys and on those persons in active concert or participation with them who receive actual
notice of the injunction.” Fla. R. Civ. P. 1.610(c) (emphasis added).
New Windows should withdraw this portion of its Motion as wholly lacking a legal basis
under Florida jurisprudence. Plaintiffs’ claims are specifically based on the non-compete and non-
solicitation covenants and not a general theory of contract law. New Windows’ specious argument
should be rejected.
C. Plaintiffs Sufficiently Pled Conversion in Count V and None of New
Windows’s Arguments to the Contrary Have Merit.
Plaintiffs sufficiently pled conversion in Count V of their Amended Complaint. Under
Florida law, demand is not required to state a claim for conversion, employee time can be
converted, and New Windows’ other arguments lack merit.
First, New Windows argues that Plaintiffs’ claim for conversion must fail because
17
Plaintiffs did not allege that they demanded the return of the converted materials. Mot. at 19.
However, a “[d]emand for return of the converted property is not an element of conversion.” Neelu
Aviation, LLC v. Boca Aircraft Maint., LLC, No. 18-cv-81445-BLOOM/Reinhart, 2019 WL
3532024, at *7 (S.D. Fla. Aug. 2, 2019). The “purpose of proving a demand for property by a
plaintiff and a refusal by a defendant to return it in an action for conversion is to show the
conversion.” Columbia Bank v. Turbeville, 143 So. 3d 964, 969 (Fla. 1st DCA 2014) (quoting
Mayo v. Allen, 973 So. 2d 1257, 1259 (Fla. 1st DCA 2008)). But “demand and refusal are
unnecessary where the act complained of amounts to a conversion regardless of whether a demand
is made.” Id. Here, Defendants’ acts of misappropriating Plaintiffs’ materials, employee time, and
equipment and using them for their benefit, as alleged in the Amended Complaint, amount to a
conversion. See Am. Compl. ¶¶ 51-54. A conversion claim arises out of a “positive, overt act or
acts of dominion or authority over the money or property inconsistent with and adverse to the
rights of the true owner.” Turbeville, 143 So. 3d at 969. No demand was necessary to establish that
these materials, employees, and equipment did not belong to Defendants, but that Defendants took
and used them anyway. By misappropriating Plaintiffs’ materials, employee time, and equipment,
the intent to convert—i.e., permanently deprive Plaintiffs of their property—is manifest on the
face of Defendants’ actions. Because “facts alleged establishing conversion had occurred,
[Plaintiffs are] not required to demonstrate demand and refusal.” Id.
Second, New Windows contends that a person’s time cannot be converted. This argument
contradicts Florida law. A claim for conversion is “appropriate where the defendant has wrongfully
taken personal property or an intangible interest in a business venture.” Physicians Healthsource,
Inc. v. Doctor Diabetic Supply, LLC, No. 12-22330-PAS-SEITZ/SIMONTON, 2013 WL
12064482, at *5 (S.D. Fla. May 23, 2013) (internal citation omitted). In Physicians Healthsource,
18
Inc., the Court denied a motion to dismiss based on an argument—similar to New Windows’—
that employee time is not recoverable on a conversion claim. Id. (“Arguably, employee time may
be recoverable as a business interest, particularly given that the damages resulting from lost
employee time are easily quantified and result in a direct loss to the Plaintiff’s business.”). In fact,
Florida courts have taken a broad view of the types of intangible property that are subject to a
claim for conversion. See, e.g., VSI Sales, LLC v. DiSimone, No. 20-cv-61119-CIV-
CANNON/Hunt, 2022 WL 309375, at *11-12 (S.D. Fla. Feb. 1, 2022) (rejecting argument that
Florida law does not recognize a claim for the conversion of intangible assets and allowing claim
for conversion of customer information, orders, and payments to proceed to trial); Taubenfeld v.
Lasko, 324 So. 3d 529, 543 (Fla. 4th DCA 2021) (allowing claim for conversion of intangible
intellectual property consisting of websites); Joe Hand Promotions, Inc. v. Creative Entm’t, LLC,
978 F. Supp. 2d 1236, 1241-42 (M.D. Fla. 2013) (allowing conversion claim based on the unlawful
interception of a pay-per-view TV broadcast). Defendants’ argument that a person’s time cannot
be converted is unfounded.
Third, New Windows argues that, because Plaintiffs allege that some payment was
rendered to Plaintiffs by a third party on behalf of TQ Construction LLC, this somehow means
that New Windows paid for the converted materials and the misappropriated materials could not
have been converted. This argument is unfounded. As the Amended Complaint makes clear, New
Windows (along with co-Defendants Mr. Mata and Mr. Bravo) were responsible for
misappropriating more than $100,000 of glass product from Eco Glass. Am. Compl. ¶ 54. In
addition to this misappropriation, Defendants arranged for TQ Construction to be a front for New
Windows to purchase glass at “excessively discounted pricing[,]” which has cost Eco Glass more
than $100,000 in additional damages. Am. Compl. ¶¶ 56, 59-60. It is pure speculation by New
19
Windows that the check from a third party (Rigoberto Perez) (Am. Compl. ¶ 61) was intended to
pay for the converted/misappropriated material as opposed to glass product funneled through TQ
Construction to New Windows at excessively discounted prices. More importantly, on a motion to
dismiss, “allegations of the complaint are assumed to be true and all reasonable inferences arising
therefrom are allowed in favor of the plaintiff.” Nat’l Collegiate Student Loan Trust 2006-4 v.
Meyer, 265 So. 3d 715, 719 (Fla. 2d DCA 2019) (quoting Swope Rodante, P.A. v. Harmon, 85 So.
3d 508, 509 (Fla. 2d DCA 2012)) (emphasis in original). Hence, the only permissible inference on
a motion to dismiss is that the payment from Perez was for the property funneled through TQ
Construction at excessively discounted prices, and not for the misappropriated and converted
property.
Finally, New Windows argues that because Eco Company employees made deliveries to
New Windows, the Court should infer that the Eco employees drove their own delivery trucks.
Mot. at 20. Again, New Windows has it backwards. All inferences on a motion to dismiss must be
made in favor of the Plaintiffs—not New Windows. Nat’l Collegiate Student Loan Trust 2006-4,
265 So. 3d at 719. Hence, the Court must reject any inferences made in New Windows’s favor,
which is fatal to its position.
D. Plaintiffs Sufficiently Pled Civil Conspiracy in Count VI, as the Civil
Conspiracy is Properly Based on Plaintiffs’ Claim for Conversion.
New Windows argues that Plaintiffs’ civil conspiracy claim fails because the conversion
claim on which it is predicated also fails. Mot. at 21. As noted above, New Windows’ arguments
directed at Plaintiffs’ conversion claim lack merit, and therefore so does its argument against the
civil conspiracy claim.
CONCLUSION
For all of the foregoing reasons, New Windows’ Motion should be denied.
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Dated: April 12, 2024 Respectfully submitted,
/s/ A.M. Cristina Pérez Soto
A.M. Cristina Pérez Soto
Fla. Bar. No. 96692
Angela Korge
Fla. Bar No. 125419
Taylor R. Cavaliere
Fla. Bar No. 1040247
JONES DAY
Brickell World Plaza
Suite 3300
Miami, FL 33131
Phone: (305) 714-9700
Fax: (305) 714-9799
Email: cperezsoto@jonesday.com
Email: akorge@jonesday.com
Email: tcavaliere@jonesday.com
Joseph E. Finley
Fla. Bar No. 57540
JONES DAY
1221 Peachtree Street, N.E.
Suite 400
Atlanta, GA 30361
Phone: (404) 521-8409
Fax: (404) 581-8330
Email: jfinley@jonesday.com
Attorneys for Plaintiffs PGT Innovations, Inc.,
Eco Enterprises, LLC, Eco Glass Production,
LLC, Eco Window Systems, LLC, and Unity
Windows, LLC
21
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on April 12, 2024, a true and correct copy of the foregoing
document has been filed with the Court via the Florida e-Filing Portal and shall be served on
counsel of record.
/s/ A.M. Cristina Pérez Soto
A.M. Cristina Pérez Soto
22
EXHIBIT A
PltfsOpp_NWMSJ0000001
PURCHASE AGREEMENT
BY AND AMONG
PGT INNOVATIONS, INC.,
ECO WINDOW SYSTEMS, LLC,
ECO GLASS PRODUCTION INC
UNITY WINDOWS, INC.
NEW ECO WINDOWS HOLDING, LLC
FRANK MATA
AND
THE SELLERS
DATED AS OF JANUARY 7, 2021
NAI-1515033789v9
PltfsOpp_NWMSJ0000002
CONTENTS
Page
SECTION 1 DEFINITIONS AND INTERPRETATIONS................................................... 2
Section 1.1 Certain Definitions ..................................................................... 2
Section 1.2 Interpretation............................................................................ 22
SECTION 2 PURCHASE AND SALE ............................................................................ 24
Section 2.1 Agreement to Sell and Purchase ............................................. 24
Section 2.2 Purchase Price; Adjustments ................................................... 24
Section 2.3 Closing ..................................................................................... 29
SECTION 3 REPRESENTATIONS AND WARRANTIES REGARDING THE
COMPANY MEMBERS ...................................................................................... 31
Section 3.1 Organization and Qualification of the Companies .................... 31
Section 3.2 Power and Authority of the Company ...................................... 32
Section 3.3 Capitalization ........................................................................... 32
Section 3.4 Subsidiaries; Investments ........................................................ 33
Section 3.5 Non-contravention; Consents and Governmental
Authorizations .......................................................................... 34
Section 3.6 Financial Statements; Undisclosed Liabilities .......................... 34
Section 3.7 Absence of Changes ............................................................... 35
Section 3.8 Legal Proceedings ................................................................... 36
Section 3.9 Compliance with Laws; Permits ............................................... 36
Section 3.10 Material Contracts.................................................................... 38
Section 3.11 Title, Condition and Sufficiency of Assets ................................ 41
Section 3.12 Real Property. .......................................................................... 41
Section 3.13 Employee Benefits ................................................................... 42
Section 3.14 Labor and Employment Matters ............................................... 45
Section 3.15 Environmental Matters ............................................................. 46
Section 3.16 Insurance ................................................................................. 47
Section 3.17 Taxes ....................................................................................... 47
Section 3.18 Intellectual Property ................................................................. 51
Section 3.19 Data Privacy. ........................................................................... 55
Section 3.20 Accounts Receivable and Inventory......................................... 55
Section 3.21 Indebtedness ........................................................................... 56
Section 3.22 Brokers .................................................................................... 56
Section 3.23 Warranty; Product Liability and Related Matters ...................... 56
Section 3.24 Customers and Suppliers ........................................................ 57
Section 3.25 Related Party Transactions...................................................... 58
Section 3.26