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UNITED STATES BANKRUPTCY COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

In re

Case No. 6:02-bk-11497-KSJ Chapter 11

LOST KEY PLANTATION LIMITED PARTNERSHIP,

Debtor. ____________________________/

WCI COMMUNITIES,

Plaintiff,

vs.

Adversary No. 6:04-ap-156

RODERIC M. WRIGHT,

Defendant ____________________________/

MEMORANDUM OPINIONGRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S CROSS MOTION FOR SUMMARY JUDGMENT

The plaintiff, WCI Communities, Inc., and the defendant, Roderic M. Wright, have filed cross motions for summary judgment contending no material factual disputes exist. The sole legal issue is whether the res judicata effect of the order confirming the debtor’s plan of liquidation bars Wright from continuing with a state court lawsuit filed against WCI, who purchased real property from the debtor under the confirmed plan. For the reasons stated in this opinion, the Court holds that the Confirmation Order does not bar Wright’s lawsuit finding that his claim does not arise out of the same nucleus of operative facts considered by the Court during the confirmation process.

The debtor, Partnership, was the

Lost Key

Plantation

owner of a

large and

Limited valuable

parcel of real Florida, which

exception

of

property located in Perdido Key,

was an

largely undeveloped with

operating

golf

course

the (the

“Property”). In July 2001, Wright approached the debtor’s principals about brokering the sale of the Property. On September 4, 2001, the debtor executed a Finders/Brokers Agreement in which the debtor agreed to pay Wright a 10 percent commission if he were able to procure a sale of the Property for at least

$34 million.

In his capacity as a real estate broker for the debtor, Wright met with Dwight Thomas, a representative of WCI, to encourage the company to buy the Property. At this meeting on August 21, 2001, Wright required Thomas to sign a document entitled Non-Disclosure/Non-Compete Agreement (the “Confidentiality Agreement”), before providing certain information about the Property to him.

Confidentiality

Agreement in his

current lawsuit

against WCI.)

However, back

in 2001, WCI

(Wright

is

relying

upon

the

terms

of this

in buying the

interest

no

expressed Property.

absolutely

Wright, not one to give up a sale, met with Thomas and another WCI representative, Joe Corelli, a second time on October 8, 2002. Wright again made a sales presentation to induce WCI to purchase the Property. Again, WCI declined.

Because the debtor was unable to pay its

operating expenses and due to an foreclosure of the Property, the debtor Chapter 11 case on October 21, 2002.

imminent filed this Wright

continued

with

his

efforts

to

sell

the

Property,

again

contacting Thomas, WCI’s employment

now at a new job after leaving on December 2, 2002. Nothing

came of these discussions.

However, Wright

was

successful

in

convincing another buyer, Lee Maher of Unicorp National Development, to purchase the Property. On February 21, 2003, after a complicated series of further negotiations, the debtor signed a purchase agreement with Maher’s designated purchasing entity, Lost Key Resort (“Resort”), to buy the

Property for $18,250,000.

Further,

purchase agreement, that Wright was to

Resort and the receive a 3.3

interest Wright

in Resort.1 In addition to this also was entitled to a broker’s

as part of the debtor agreed percent equity equity interest, commission of

$250,000,

plus

a

participation

fee

of

up

to

$150,000

based

on

future

events.

Wright

filed

an

application

with paid

the his

Court to be retained as a broker commission in connection with

and to be this sale

(Doc. Nos. 141 and 143).

Resort’s purchase

agreement

was

the

cornerstone of the debtor’s Chapter 11 liquidation

1 As part of its strategy to obtain the Property, Resort also purchased from AmSouth Bank, one of the debtor’s secured creditors, the mortgage debt encumbering the Property. Thus, Resort was both a proposed purchaser of the Property and a secured creditor in the bankruptcy case. Wright certainly was aware of Resort’s acquisition of AmSouth’s debt, if, indeed, he was not the person orchestrating the purchase.

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