Great American Insurance Company v. Craig Mueller

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12039
Non-Argument Calendar
____________________
GREAT AMERICAN INSURANCE COMPANY,
as subrogee of Vandernoord Partners LLP,
Plaintiff-Appellee,
versus
CRAIG MUELLER,
an individual,
Defendant-Appellant.
USCA11 Case: 21-12039 Date Filed: 06/30/2022 Page: 1 of 17

-- 1 of 17 --

2 Opinion of the Court 21-12039
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:19-cv-03170-TPB-JSS
____________________
Before R OSENBAUM , JILL PRYOR , and BRANCH, Circuit Judges.
PER CURIAM:
Craig Mueller, a licensed attorney proceeding
pro se, ap-
peals the district court’s grant of summary judgment to Great
American Insurance Company, as subrogee of Vandernoord Part-
ners LLP, on its claim for breach of contract stemming from a fuel
spill caused by Mueller’s yacht at Regatta Pointe Marina (the “Ma-
rina”) in Palmetto, Florida. Mueller contends that, although he
signed the contract, he never agreed to its terms, no consideration
was given, and the contract is otherwise voidable due to fraud (be-
cause the Marina misrepresented the depth of the river channel to
the marina and caused his vessel to run aground) and duress (be-
cause the Marina threatened to tow his vessel and abandon it if he
did not sign a contract to lease a boat slip). After careful review,
we reject Mueller’s arguments and affirm the grant of summary
judgment.
I.
The relevant facts, viewed in the light most favorable to
Mueller, are as follows. In mid-September 2017, Mueller contacted
USCA11 Case: 21-12039 Date Filed: 06/30/2022 Page: 2 of 17

-- 2 of 17 --

21-12039 Opinion of the Court 3
the Marina about reserving a boat slip. He spoke with Dock Master
Paul Van Ryn, who assured him that the river channel to the Ma-
rina was a minimum of 10 feet deep and could accommodate
Mueller’s vessel, the
M/V Mojave Moon, a 78-foot Pacemaker
yacht with an 8.5-foot draft. The Dock Master made the same rep-
resentations to the captain of the
Mojave Moon, Stephan Gravolet,
in a separate conversation. The Marina’s website at that time like-
wise listed the depth of the channel as a minimum of 10 feet. Based
on these representations, Mueller agreed to bring his vessel to the
Marina.
On the day of the transport to the Marina on October 1,
however, the
Mojave Moon ran aground in the middle of the river
channel. The vessel was removed by use of a marina tow and taken
to the closest marina, which was the Marina. Mueller informed
Dock Master Van Ryn that, because of misrepresentations about
the channel depth and the subsequent grounding of his vessel, he
intended to transit to another marina as soon as possible and would
not sign a lease agreement for a boat slip at the Marina (“slip agree-
ment”).
Before the
Mojave Moon could leave the Marina, though,
Captain Gravolet broke his hand when the dock collapsed under-
neath him. A subsequent fall caused him to leave the vessel, his
usual home, on October 18, 2017. Without the yacht’s captain,
Mueller was unable to move the vessel as originally planned.
That same day, October 18, Mueller told Dock Master Van
Ryn that he was holding Van Ryn and the Marina responsible for
USCA11 Case: 21-12039 Date Filed: 06/30/2022 Page: 3 of 17

-- 3 of 17 --

4 Opinion of the Court 21-12039
the grounding of his vessel, any associated damage to the vessel,
and the injury to its captain. And Mueller again indicated his intent
to leave the Marina as soon as possible and to not sign any slip
agreement. A few days later, Van Ryn called and threatened
Mueller that the Marina would “tow his vessel out of the marina
and abandon it in the river channel” if he did not sign a slip agree-
ment.
Concerned about the safety of his vessel, Mueller ultimately
signed a slip agreement for the
Mojave Moon on November 8,
2017. Mueller claims that, in signing the agreement, he had “no
intent to be bound by its terms and conditions,” and he “saw sign-
ing the Agreement as the only way I could save my vessel from
being towed and abandoned” by the Marina.
In mid-December 2017, the
Mojave Moon, while docked at
the Marina, began listing to starboard and discharging diesel fuel
into the water. The Marina paid to contain and clean the fuel from
its water and the adjacent area. The total cost of the cleanup was
$95,907.42, which the Marina’s insurer, Great American, reim-
bursed under its insurance policy.
II.
In November 2019, Great American, as subrogee of Vander-
noord Partners LLP, the Marina’s owner during the relevant time,
filed this state-court action against Mueller for breach of contract,
negligence, and quantum meruit, seeking to recover the fuel-spill
cleanup costs under the slip agreement.
USCA11 Case: 21-12039 Date Filed: 06/30/2022 Page: 4 of 17

-- 4 of 17 --

21-12039 Opinion of the Court 5
After Mueller removed the action to federal district court,
Great American moved for partial summary judgment on its claim
for breach of contract. It submitted as evidence a copy of the slip
agreement signed by Mueller, an affidavit from Dock Master Van
Ryn, and an affidavit from Joanne Marziano, a Great American em-
ployee who testified as to damages. This evidence showed that the
Mojave Moon was docked at the marina under the slip agreement
when it began to discharge fuel into the water, which the insurer
paid to clean up, and that the agreement required the boat owner
to keep his vessel in a safe and seaworthy condition and to pay for
any damages caused in connection with the use of the marina and
slip.
Responding in opposition, Mueller asserted that the slip
agreement was unauthenticated hearsay, that Marziano lacked per-
sonal knowledge, and that Van Ryn failed to follow the require-
ments of 28 U.S.C. § 1746. He also claimed that material issues of
fact existed, relying on affidavits from Captain Gravolet and him-
self. He asserted that (a) he was fraudulently induced to sign the
contract by misrepresentations about the channel’s depth; (b) he
“only signed the Slip Agreement under coercion and duress” from
Dock Master Van Ryn and the injuries to his captain; and (c) there
was no “meeting of the minds” because, despite signing the con-
tract, he clearly indicated an intent not to be bound by its terms.
While summary-judgment briefing remained ongoing,
Mueller filed a motion seeking to prevent Great American’s wit-
nesses from “giving testimony at trial” as a sanction for untimely
USCA11 Case: 21-12039 Date Filed: 06/30/2022 Page: 5 of 17

-- 5 of 17 --

6 Opinion of the Court 21-12039
initial disclosures under Rule 26, Fed. R. Civ. P. He did not request
any relief in relation to the pending motion for summary judg-
ment, nor did he raise similar arguments in his summary-judgment
briefing. In response to the sanctions motion, Great American ad-
mitted that its initial disclosures were untimely but asserted that its
failure was substantially justified or harmless. It stated that its over-
sight was the result of a clerical error at the beginning of the pan-
demic. It also noted that Mueller was well aware of its listed wit-
nesses and that he had received all damages-related invoices—the
subject of Marziano’s testimony—during discovery.
On April 30, 2021, the district court granted summary judg-
ment to Great American on its claim for breach of contract, with-
out addressing Mueller’s motion for sanctions. The court expressly
did not rely on Van Ryn’s affidavit in its ruling, citing a lack of com-
pliance with 28 U.S.C. § 1746.
First, the district court found that Great American had estab-
lished its claim for breach of contract. The court found that a con-
tract existed based on the agreement itself. It rejected Mueller’s
contention that the slip agreement was unauthenticated, noting
that he had attached a copy of the same agreement to his answer.
It also determined that Mueller breached the contract, finding it
“undisputed” that fuel spilled from Mueller’s vessel into Marina
waters and that he did not pay the cleanup costs. Finally, as to
damages, the court concluded that Marziano’s testimony about the
cleanup costs was admissible and, along with the invoices attached
to her affidavit, constituted prima facie evidence that the expenses
USCA11 Case: 21-12039 Date Filed: 06/30/2022 Page: 6 of 17

-- 6 of 17 --

21-12039 Opinion of the Court 7
were reasonable. And it determined that Mueller had provided no
evidence to create a genuine dispute of material fact as to that issue.
Next, the district court rejected Mueller’s affirmative de-
fenses challenging the contract. In relevant part, it determined that
his fraudulent-inducement defense failed because, when he signed
the slip agreement, he already knew about the depth of the river
channel and so could not have relied on or been injured by the prior
misrepresentations. It also found that Mueller had not established
a genuine triable issue of duress. In the court’s view, the Dock
Master’s threat to tow the vehicle if Mueller did not sign a slip
agreement did not constitute unlawful duress because the Marina
was “within its legal rights to remove the vessel” had he not done
so. The court also stated that there was no reason to invalidate the
slip agreement based on Mueller’s “subjective belief that he had no
other option but to sign the Slip Agreement, without any evidence
of wrongdoing.” It noted that that Mueller “could have hired a
new captain to remove the vessel from the marina.”
Following the grant of summary judgment on its claim for
breach of contract, Great American dropped its remaining claims,
and the court entered final judgment. This appeal followed.
III.
We start with Mueller’s argument that the district court
abused its discretion by granting summary judgment without first
ruling on his motion for sanctions, which sought to bar testimony
from Great American’s witnesses.
USCA11 Case: 21-12039 Date Filed: 06/30/2022 Page: 7 of 17

-- 7 of 17 --

8 Opinion of the Court 21-12039
We review claims that the district court mismanaged its
docket for an abuse of discretion.
Chudasama v. Mazda Motor
Corp., 123 F.3d 1353, 1366–67 (11th Cir. 1997). While the court has
“broad discretion” to manage its cases, the “[f]ailure to consider
and rule on significant pretrial motions before issuing dispositive
orders can be an abuse of discretion” if the litigant was “materially
prejudiced” as a result.
Id. However, a party is prejudiced “only if
there is a reasonable likelihood that the outcome would have been
different.”
Equal Emp. Opportunity Comm’n v. STME, LLC, 938
F.3d 1305, 1322 (11th Cir. 2019) (quotation marks omitted) (hold-
ing that a district court’s failure to rule on a motion was harmless
where there was no reasonable likelihood of a different outcome).
To begin with, we cannot say that the district court should
have ruled on the motion for sanctions before granting summary
judgment. Mueller’s response to Great American’s motion for
summary judgment, filed more than two months before the initial
Rule 26 disclosures were made, did not raise any issues about the
failure to disclose Van Ryn or Marziano as witnesses. Nor did the
motion for sanctions request any relief in relation to the pending
motion for summary judgment. Rather, it expressly sought to bar
testimony “at trial.” Because Mueller, a licensed attorney, did not
draw any clear connection between the motion for sanctions and
the motion for summary judgment, we cannot say the district
USCA11 Case: 21-12039 Date Filed: 06/30/2022 Page: 8 of 17

-- 8 of 17 --

21-12039 Opinion of the Court 9
court abused its discretion by failing to raise that connection on its
own.1
In any case, Mueller cannot show that he was materially
prejudiced by the district court’s failure to address his motion for
sanctions because the motion was unlikely to succeed. Great
American admittedly did not make timely witness disclosures as
required by Rule 26. But it could still use testimony from those
witnesses if the failure to timely identify them “was substantially
justified or [wa]s harmless.” Fed. R. Civ. P. 37(c)(1).
And here, there was little before the district court to show
that Great American’s failure to make timely witness disclosures
under Rule 26 was anything other than harmless. Mueller cannot
credibly claim he was surprised by the affidavits from Van Ryn and
Marziano. In fact, he made no such argument when he first re-
sponded to those affidavits, despite the lack of any Rule 26 disclo-
sures at that time. Moreover, he knew that Dock Master Van Ryn
was a likely witness, given his own testimony where the Dock Mas-
ter is prominently featured, and he does not deny that he received
the billing invoices on which Marziano’s testimony was based. We
also note that Mueller did not raise any independent challenge to
damages either in the district court or on appeal.
1 Although we ordinarily construe
pro se pleadings liberally, this rule does not
apply when the
pro se litigant is a licensed attorney, like Mueller.
Olivares v.
Martin, 555 F.2d 1192, 1194 n.1 (5th Cir. 1977).
USCA11 Case: 21-12039 Date Filed: 06/30/2022 Page: 9 of 17

-- 9 of 17 --

10 Opinion of the Court 21-12039
In sum, we see no viable grounds on which to conclude that
Great American’s failure to comply with Rule 26 prejudiced
Mueller. Nor do the other relevant factors suggest that exclusion
was warranted.
See Romero v. Drummond Co., 552 F.3d 1303,
1321 (11th Cir. 2008) (whether exclusion is warranted depends on
the explanation of the offending party, the importance of the testi-
mony, and the prejudice to the opposing party). The error appears
to have been an inadvertent clerical oversight, and the testimony
was important to Great American’s case.
For these reasons, Mueller has not demonstrated that a dif-
ferent outcome was reasonably likely had the district court ruled
on his motion for sanctions before addressing the motion for sum-
mary judgment.
See STME, 938 F.3d at 1322;
Chudasama, 123 F.3d
at 1367. In short, any error was harmless. We therefore turn to
the merits of the summary-judgment ruling.
IV.
We review the grant of summary judgment
de novo, view-
ing the facts in the light most favorable to Mueller, the nonmoving
party.
Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1303 (11th Cir.
2009). Summary judgment is appropriate if the movant shows that
“there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
In other words, summary judgment should be denied unless, on
the record evidence presented, a reasonable jury could not return
a verdict for the nonmoving party.
See Mann, 588 F.3d at 1303.
USCA11 Case: 21-12039 Date Filed: 06/30/2022 Page: 10 of 17

-- 10 of 17 --

21-12039 Opinion of the Court 11
In response to a motion for summary judgment, the oppos-
ing party generally “cannot rest on his pleadings” and must instead
present evidence and formulate arguments demonstrating “mate-
rial facts which must be presented to a jury for resolution.”
Van T.
Junkins & Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656, 658 (11th
Cir. 1984). When a defendant raises an affirmative defense in op-
position to summary judgment, he “has the initial burden of mak-
ing a showing that the [affirmative] defense is applicable.”
Blue
Cross & Blue Shield of Ala. v. Weitz, 913 F.2d 1544, 1552 (11th Cir.
1990);
see Int’l Stamp Art, Inc. v. U.S. Postal Serv., 456 F.3d 1270,
1274 (11th Cir. 2006) (discussing a defendant-movant’s burden of
proof for affirmative defenses). In other words, the burden is on
the defendant to adduce evidence supporting an affirmative de-
fense, not upon the movant to negate its existence.
Johnson v. Bd.
of Regents of Univ. of Ga., 263 F.3d 1234, 1264 (11th Cir. 2001).
Moreover, because the parties bear the burden of formulat-
ing arguments at summary judgment, arguments not made at that
time “will generally not be considered on appeal,” absent excep-
tional circumstances.
Resolution Trust Corp. v. Dunmar Corp., 43
F.3d 587, 598–99 (11th Cir. 1995) (
en banc). The district court is
under no obligation to “distill every potential argument that could
be made based upon the materials before it on summary judg-
ment.”
Id. at 599.
Here, Mueller has not shown that the district court erred in
granting summary judgment to Great American. First, Mueller
claims that, despite signing the slip agreement, there are genuine
USCA11 Case: 21-12039 Date Filed: 06/30/2022 Page: 11 of 17

-- 11 of 17 --

12 Opinion of the Court 21-12039
issues of material fact as to whether—leaving aside for now the de-
fenses of fraud and duress—he manifested acceptance to its terms
and whether consideration was provided. Not so.
Under Florida law, “a party who signs a document”—even
without reading it—“is bound by its terms in the absence of coer-
cion, duress, fraud in the inducement or some other independent
ground justifying rescission.”
Hale v. State, 838 So. 2d 1185, 1187
(Fla. 5th Dist. Ct. App. 2003). There is no dispute that Mueller
signed the slip agreement for the
Mojave Moon on November 8,
2017, which made clear that it was a “INTENDED TO BE A
LEGALLY BINDING CONTRACT.”
Nor is there evidence that, in signing the slip agreement,
Mueller made it known to the Marina that he had no intention of
being bound. The determination of “whether there has been a mu-
tual consent to a contract” depends on the “writing itself,” and
sometimes other “external signs,” not on the “unilateral secret in-
tent of a party to [the] written instrument.”
Gendzier v. Bielecki,
97 So. 2d 604, 608 (Fla. 1957). Despite his prior statements to Dock
Master Van Ryn in mid-October that he would not sign a slip agree-
ment, Mueller ultimately did just that on November 8, 2017.2
2 Mueller’s briefing gets a bit loose with the timing of events, but his own
affidavit establishes the following timeline. On or about October 1, after the
Mojave Moon ran aground and was towed to the Marina, Mueller informed
Dock Master Van Ryn of his intent not to sign a slip agreement. A little over
two weeks later, “on or about October 18, 2017,” Mueller “again had a heated
conversation with Dock Master Van Ryn” about the grounding of his vessel
and the injury to its captain, stating that he would not sign a slip agreement.
USCA11 Case: 21-12039 Date Filed: 06/30/2022 Page: 12 of 17

-- 12 of 17 --

21-12039 Opinion of the Court 13
Nothing in the record indicates any other contact between Mueller
and the Marina in the interim. So that Mueller privately intended
not to be bound by the contract is not relevant because mutual as-
sent does not depend on “the unilateral secret intent of a party to a
written instrument.”
Id. at 608–09.
Mueller did not raise his claim that the agreement lacked
consideration before the district court at summary judgment, so
that claim is not properly before us on appeal.
See Resolution
Trust, 43 F.3d at 598–99. In any case, this claim lacks merit because
the terms of the slip agreement plainly reflect an exchange of prom-
ises—monthly rent for a boat slip—that constitutes consideration.
See Johnson Enters. of Jacksonville v. FPL Grp., Inc., 162 F.3d 1290,
1311 (11th Cir. 1998) (“In a bilateral contract, the exchange of
promises by both parties constitutes consideration.”).
Next, the district court correctly rejected Mueller’s defense
of fraud in the inducement. A claim of fraudulent inducement is
based on “misrepresentations, statements or omissions which
cause the complaining party to enter into a transaction.”
Allen v.
Stephan Co., 784 So. 2d 456, 457 (Fla. 4th Dist. Ct. App. 2000). De-
spite the Marina’s prior false statements about the depth of the
river channel, which of course influenced Mueller’s decision to
Then, “[o]n or about two days after speaking to Mr. Van Ryn about [his] Cap-
tain’s injury”—on October 20, in other words—Mueller received a call from
Van Ryn threatening to tow his vessel from the Marina if he did not sign a slip
agreement.
USCA11 Case: 21-12039 Date Filed: 06/30/2022 Page: 13 of 17

-- 13 of 17 --

14 Opinion of the Court 21-12039
attempt transport on October 1, Mueller was fully aware of the ac-
tual facts when he signed the contract on November 8. As a result,
he could not have reasonably relied on the false statements.
See
Oceanic Villas, Inc. v. Godson, 148 So. 2d 689, 690 (Fla. 1941) (stat-
ing that a contract may be invalidated where it was “procured by
fraud and misrepresentation as to a material fact, the truth or falsity
of which was known only to the [party seeking to enforce the con-
tract]”).
We recognize that Mueller contends more broadly that he
suffered damages to his vessel and its captain in reasonable reliance
on the Marina’s misrepresentation about the depth of the river
channel. But Mueller raised fraudulent inducement as a defense to
an action for breach of contract, not as an independent claim based
on the Marina’s conduct more generally.3 Because Mueller did not
rely on the misrepresentation about the channel’s depth in signing
the contract, the misrepresentation does not present grounds to in-
validate the contract.
See id.
Finally, on the current record, no reasonable jury could con-
clude that Mueller established that the contract was the product of
duress. Duress is a condition of the mind produced by an improper
external pressure or influence that practically destroys the free
agency of a party.
Cooper v. Cooper, 69 So. 2d 881 (Fla. 1954). To
3 The district court denied Mueller’s motion for leave to file a third-party com-
plaint against the Marina’s owner, Vandernoord Partners, and Mueller does
not challenge that ruling on appeal.
USCA11 Case: 21-12039 Date Filed: 06/30/2022 Page: 14 of 17

-- 14 of 17 --

21-12039 Opinion of the Court 15
demonstrate duress, a party must show “(1) that one side involun-
tarily accepted the terms of another, (2) that circumstances permit-
ted no other alternative, and (3) that [those] circumstances were
the result of coercive acts of the opposite party.”
Woodruff v.
TRG–Harbour House, Ltd., 967 So. 2d 248, 250 (Fla. 3d Dist. Ct.
App. 2007).
Here, the facts in evidence, even construed in Mueller’s fa-
vor, fall well short of the legal standard for duress. Mueller claims
that he signed the agreement only to save his vessel after the Dock
Master threatened to remove it from the Marina and abandon it in
the river channel. We agree with the district court, though, that it
appears the Marina would have been within its rights to remove
Mueller’s vessel if he refused to execute a lease. And “it is not im-
proper and therefore not duress to threaten what one has a legal
right to do.”
City of Miami v. Kory, 394 So. 2d 494, 498 (Fla. 3d
Dist. Ct. App. 1981).
To the extent the Dock Master’s threat expressed or implied
some illegal action, such coercive conduct did not create circum-
stances that permitted no other alternative than signing the slip
agreement.
See Woodruff, 967 So. 2d at 250. First, there does not
appear to have been any immediacy to the threat. According to
the timeline in Mueller’s affidavit, the Dock Master’s threat oc-
curred on October 20, more than two weeks before Mueller signed
the slip agreement on November 8. He therefore had time to con-
sider his options and make an informed decision.
USCA11 Case: 21-12039 Date Filed: 06/30/2022 Page: 15 of 17

-- 15 of 17 --

16 Opinion of the Court 21-12039
Second, the record contains no evidence that the Marina
took any coercive action to prevent Mueller from removing the
Mojave Moon from the Marina on his own. In fact, it appears
Mueller had made plans for the vessel to leave the Marina before
the injury to its captain. Mueller does not suggest that the Marina
intentionally injured his captain, even if he holds it responsible.
That Mueller faced practical difficulties in moving the vessel, such
as hiring a temporary captain or paying for a marine tow to another
marina, is not alone enough to show duress. While those difficul-
ties certainly influenced his decision to sign, they do not demon-
strate he had no other alternative than signing the slip agreement
to avoid the threatened consequences.
See Woodruff, 967 So. 2d
at 250.
Aside from the arguments addressed above, Mueller’s initial
brief does not otherwise challenge the district court’s determina-
tions that he materially breached the slip agreement by failing to
pay for the cleanup costs caused by his vessel or that Great Ameri-
can suffered damages in the amount of $95,907.42. Any argument
along these lines has therefore been abandoned.
See Sapuppo v.
Allstate Floridian Ins. Co., 739 F.3d 678, 680–81 (11th Cir. 2014) (is-
sues not briefed on appeal are abandoned).
While Mueller’s reply brief revives his contention in the dis-
trict court that the slip agreement was unauthenticated and there-
fore not proper evidence, we do not consider arguments raised on
appeal for the first time in a reply brief.
See Hi-Tech Pharma., Inc.
v. HBS Int’l Corp., 910 F.3d 1186, 1194 (11th Cir. 2018) (“[A]n
USCA11 Case: 21-12039 Date Filed: 06/30/2022 Page: 16 of 17

-- 16 of 17 --

21-12039 Opinion of the Court 17
appellant must directly challenge each of the district court’s
grounds in his initial brief; challenges that are merely hinted at or
that first appear in a reply brief do not merit consideration.”). We
also note that Mueller does not appear to dispute that the agree-
ment is authentic or that he signed it; rather, the gist of his defense
is that the agreement cannot be enforced for various reasons,
which we have considered and rejected.
In sum, and for the foregoing reasons, we affirm the district
court’s grant of summary judgment in favor of Great American on
its claim for breach of contract against Mueller.
AFFIRMED.
USCA11 Case: 21-12039 Date Filed: 06/30/2022 Page: 17 of 17

-- 17 of 17 --