Westgate Resorts v Reed Hein & Assoc., SGB Law and Ken Privett Esq.

Selected Events:

7/14/2020- Order on Westgate’s Motion to Exclude Expert Witness Testimony and Report of Steven Marshall- The Court granted Westgate’s motion to exclude TET’s expert witness Steven Marshall’s testimony and report from trial on the basis that although Marshall is a qualified appraiser and his observations about the timeshare industry appear to be based on reliable data, his opinion about the economic difficulties timeshare owners suffer at the hands of the timeshare industry does not require expert testimony.  This information can be relayed to the jury through lay person testimony during the trial.

4/27/2020 – Order on WG’s Motion to reconsider grant of summary judgment on Lanham Act claim [156]

2/11/2020 – Order granting TET’s Motion for Summary Judgment on Lanham Act

2/11/2019- Order on Westgate’s Motions to Dismiss TET, Privett and SGB’s Affirmative Defenses [87]:  

The court found that the defenses at issue, whether they should be considered affirmative defenses or denials were adequate to provide Westgate with adequate notice of the factual and legal defenses TET and the attorneys planned to raise at trial.   However, SGB’s ninth affirmative defense based on intra-corporate conspiracy doctrine appears to assert an affirmative defense however, it is not an affirmative defense to the tort of conspiracy.  The Court struck SGB’s ninth affirmative defense with leave to amend.  The Court deemed SGB’s second and eight defenses to be denials and declined to strike those defenses.

10/24/2018- Order on TET, Privett and SGB’s Motions to Dismiss [56]:  

TET’s Motion to Dismiss:

The court denied TET’s motion to dismiss Westgate’s tortious interference with existing timeshare contracts claim because the allegations pled in the Complaint were sufficient to put TET on notice and the fraud was plead with specificity.    Westgate pled it had valid and enforceable timeshare agreements with the timeshare owners, that  TET knew of Westgate’s existing agreements with the timeshare owners and urged Westgate timeshare owners to stop making payments to Westgate.  As a result, Westgate suffered damages.

TET’s motion to dismiss Wesgate’s claim that TET violated Florida’s Deceptive and Unfair Trade Practices Act was also denied.  TET argued Westgate’s FDUTPA claim should fail as Westgate is not a consumer.  The court denied TET’s motion as FDUTPA claims are not limited to consumers but to all entities that can prove the elements of a FDUTPA claim.  Additionally, Westgate’s claims of fraud were not based on mere words of puffery but by alleged false and misleading advertising statements.

The court also denied TET’s motion to dismiss Westgate’s  false advertising under the Lanham Act as TET’s advertising, as pled by Westgate was not mere puffery or non-actionable opinions.  Additionally, Westgate was not required to plead it was in commercial competition with TET as it pled it suffered from reputational injury.  Finally, Westgate also sufficiently alleged it was injured and those injuries were proximately caused by TET.

Civil Conspiracy Claims:  

Westgate asserted two civil conspiracy claims, one against TET and SGB and another against TET and Privett.  The court denied the motions to dismiss as to TET, SGB and Privett.  The argument that the demand letters sent by the attorneys on behalf of Westgate timeshare owners were governed by the  litigation privilege thereby barring Westgate’s claims.  The court was unable to reasonably conclude that Westgate’s claims were covered by the litigation privilege, which is an affirmative defense.  As such, the court denied the motions as to this claim.