Opinion
CASE NO. 20-62280-CIV-SINGHAL/VALLE
2021-10-29
STAND STRONG USA, INC. d/b/a Be Strong, Plaintiff, v. HARWICH ENTERPRISES, LLC d/b/a Park West Gallery and Park West Charitable Foundation, Defendants.
Raquel M. Fernandez, Desiree Erin Fernandez, Bilzin Sumberg Baena Price & Axelrod, Miami, FL, for Plaintiff. John Everett Thornton, Jr., Paul Joseph Schwiep, Coffey Burlington, P.L., Miami, FL, for Defendants.
Raquel M. Fernandez, Desiree Erin Fernandez, Bilzin Sumberg Baena Price & Axelrod, Miami, FL, for Plaintiff.
John Everett Thornton, Jr., Paul Joseph Schwiep, Coffey Burlington, P.L., Miami, FL, for Defendants.
ORDER ON MOTION FOR SUMMARY JUDGMENT
RAAG SINGHAL, UNITED STATES DISTRICT JUDGE
THIS CAUSE is before the Court on the Motion for Summary Judgment (DE [60]) filed by Defendants Harwich Enterprises, LLC d/b/a Park West Gallery and Park West Charitable Foundation (collectively, "Park West" or "Defendants"). Plaintiff Stand Strong USA, Inc. d/b/a Be Strong ("Be Strong") has filed a Response in Opposition (DE [65]), and Park West has filed a Reply (DE [69]). For the reasons discussed below, the Court grants Park West's Motion.
I. MATERIAL FACTS
This breach-of-contract action involves an online voting contest called the "Charity Challenge."
The Charity Challenge
In 2020, Park West hosted the Charity Challenge as a "fun way" of selecting charities to receive donations. Defs.’ Statement of Material Facts ¶ 1 ("SOMF") (DE [61]). The Challenge launched on January 20, 2020, and ran for two weeks through February 2, 2020. Id. ¶ 2.
Park West wanted to develop a website that allowed each person to vote only once. (DE [62-5], at 3). The Challenge was designed to allow a user to vote through the website only one time and would display the message "You cannot vote again" if a user tried to vote more than once. See (DE [62-5], at 4); see also (DE [62-1], at 33). But the single-vote term was not displayed on the Challenge's landing page before a user voted. See (DE [62-5], at 26).
To enforce the single-vote rule, Park West directed its website developer to implement a "cookied solution": After a user voted, a cookie would be saved to the user's web browser, preventing the user from voting again from that browser. Pl.’s Opposing Statement of Material Facts ¶ 10 ("OSOMF") (DE [66]). After voting, a user would receive a confirmation message that stated, "Thank you for your vote! You can only vote once." Id. ¶ 12; see also (DE [62-1], at 38). If a user of a cookied browser tried voting again, the user would receive an error message stating, "You cannot vote again." OSOMF ¶ 11 (DE [66]). The cookied solution, however, could be bypassed by using "incognito mode" or "private mode" on a browser. (DE [62-5] ¶ 10). Be Strong's corporate representative and executive director, Ashleigh Cromer, also acknowledged that Park West's voting platform was designed to alert voters that they could vote only once. (DE [62-7], at 25).
The term of the Challenge that "individuals are only able to vote once" was communicated to anyone who accessed Park West's online press release on PR Newswire.com, which is still accessible today. (DE [62-1] ¶ 5); see (DE [62-2], at 33). Park West also circulated the press release to several news sites for publication. (DE [62-2], at 33). On the day the Challenge launched, Park West posted to its Facebook and Instagram pages that "[y]ou can only vote once, so make it count!" SOMF ¶ 5 (DE [61]). Park West also circulated email blasts to its staff asking them to post on social media a message stating, in part, that "you can only vote once!" Id. ¶ 6. Toward the end of the Challenge, Park West also sent a similar message to its collectors and "IC list" stating that they had only one vote. Id. ¶ 8.
Be Strong is Added to the Challenge
After the Challenge had already begun, Ann Karay—the wife of Park West's vice president, John Karay—asked Mr. Karay whether it would be possible to add Be Strong to the Challenge, and Park West agreed. Id. ¶ 14. Mrs. Karay sent a text message to Cromer asking her if Mrs. Karay could add Be Strong to the list of participants; Be Strong agreed and was added two days after the Challenge began. Id. ; see also Defs.’ Reply Statement of Material Facts ("RSOMF") ¶ 50 (DE [70]).
The parties dispute Mrs. Karay's level of authority to act on Park West's behalf: Park West asserts that Mrs. Karay was "not an officer, employee, agent, or representative" of either Defendant, and she had no authority to speak on either Defendant's behalf—nor did Defendants so represent—especially regarding the Challenge. (DE [62-19] ¶¶ 3–6). But in the text message from Mrs. Karay to Cromer asking Cromer about adding Be Strong to the Challenge, Cromer asked, "Is park west you guys?" to which Mrs. Karay responded, "Yes." (DE [62-11], at 2). During Mr. Karay's deposition, he clarified that Mrs. Karay and Cromer communicated about the Challenge "as friends" and that Mrs. Karay "does not work with Park West." (DE [67-5], at 19). Mr. Karay also testified that his wife of thirty years was "part of the company through [him]" and that he and Mrs. Karay were "one [and] the same"; Mrs. Karay, however, "doesn't work for the company." Id. ; see also id. at 5–6.
In contrast, Be Strong points to certain facts it believes create a factual issue about whether Mrs. Karay was Park West's apparent agent. See OSOMF ¶ 34 (DE [66]). Mrs. Karay admitted during her deposition that she had a LinkedIn profile identifying her as Park West's "director of charitable giving," a position she briefly held more than five years ago. (DE [67-7], at 6–7); (DE [62-8] ¶¶ 5–6). But Mrs. Karay attested that the profile was "outdated," that she had not had access to the LinkedIn profile for several years, and that she had not communicated with anyone at Be Strong through LinkedIn. (DE [62-8] ¶¶ 5–6); (DE [67-18], at 2). When Mrs. Karay emailed Be Strong's employees, she used a personal Bellsouth email address, whereas Park West's actual employees used official Park West email addresses. OSOMF ¶ 36 (DE [66]). After Be Strong was added to the Challenge, Mrs. Karay emailed several of Defendants’ employees at their work email addresses thanking them "for allowing" Be Strong to be a part of the Challenge and for "making this happen." (DE [62-9], at 2). Park West was also aware that Mrs. Karay was communicating with Be Strong about the Challenge and did not prevent her from doing so. See (DE [67-9]); (DE [62-3]). The parties also disagree about whether Mrs. Karay first introduced herself to Be Strong's founder, Roy Moore, as Park West's "director of charitable giving" when they met at a church event in 2019. Park West maintains that Mrs. Karay introduced herself as a "coach and speaker" for an unrelated entity. (DE [62-8] ¶ 8). Be Strong, however, asserts that Mrs. Karay said she was the director of charitable giving at Park West, and Mr. Karay was present and did not disavow the statement. (DE [62-17], at 25–26).
Park West created an "overview" of the Challenge for internal use and developed overview communications that it provided to the participating charities. See (DE [67-14]); (DE [62-2], at 8). Park West's then-chief marketing officer, Daniel Pingree, testified that the purpose of the overview communications to the charities was to provide them with "some basic information about the program and how it would work and how they could support it." (DE [62-2], at 8).
Park West emailed an overview of the Challenge to Cromer the day Be Strong was added to the Challenge. OSOMF ¶ 15 (DE [66]); see also (DE [62-21]). Park West asserts that the overview "was not intended to be a comprehensive list of the terms of the Challenge" and that the full terms were published at the Challenge's start and were embedded into the voting system when users voted. See (DE [62-2], at 10–11); (DE [62-10], at 7). Be Strong disputes this; it contends that the term of voting once was not communicated to Be Strong as part of the initial offer. See (DE [62-7], at 11); (DE [67-5], at 12). The overview email sent to the other charities in December 2019 before the Challenge began informed the charities that Park West would "like to schedule a brief call to go over the details," (DE [67-17]), but this version of the overview email was not sent to Be Strong, see RSOMF ¶¶ 43, 57 (DE [70]); (DE [62-21]).
There was no single document titled "official contest rules" for the Challenge because "everything came together pretty quickly." RSOMF ¶ 47 (DE [70]). A prior draft version of the overview email stated that "[i]ndividuals are allowed to vote once." (DE [67-15], at 3). Although this rule was ultimately removed from the emails that were actually sent to the charities, it was listed in Park West's other postings and communications, including in the January 20, 2020 press release published online. See RSOMF ¶¶ 43–45, 47 (DE [70]).
The initial text messages between Mrs. Karay and Cromer discussing adding Be Strong to the Challenge did not mention anything about a single vote, but Be Strong's employees saw the one-vote message every time they voted. See id. ¶ 58. The overview email that was sent to Be Strong did not contain a single-vote restriction; instead, it stated that Be Strong was "highly encouraged to promote the charity challenge throughout [its] network to generate additional votes" and that "[t]he more votes [Be Strong] receive[d], the better chance of claiming up to $250,000!" (DE [62-21]).
Be Strong's Progress in the Challenge
According to the website developer of the Challenge's voting platform, Be Strong received 518 votes during the first six days of the Challenge, averaging 86 votes per day. OSOMF ¶ 16 (DE [66]). On the ninth day that Be Strong joined the Challenge, Cromer expressed to Mrs. Karay that she felt "foolish" for not asking in advance whether the Challenge was set up as a marketing campaign with the charitable cause merely "underpinning," as opposed to a purely goodwill or philanthropic campaign. (DE [62-11], at 24–25); (DE [62-7], at 34–35). Cromer also explained that she questioned "if it was worthwhile for [Be Strong] to continue investing" in light of bigger charities leading Be Strong in the Challenge; "massive charit[ies]" could just "drop in" and garner several votes "[w]ith one post [and] one swing," whereas it would take Be Strong "weeks" to accomplish the same feat. (DE [62-7], at 35).
Be Strong challenges the admissibility of this fact and the web developer's competency to attest to the matters stated. See OSOMF ¶¶ 16, 21, 25, 31–32 (DE [66]). The Court overrules this objection. The web developer attests in his affidavit that the voting system he personally implemented collects data from voters, including their IP address and the date and time each vote was cast. (DE [62-5] ¶ 12); see also Reply 5 n.1 (DE [69]). Thus, the Court finds that the web developer is competent to attest to the number of votes cast on each day and the originating IP addresses.
On the fifth day after Be Strong joined the Challenge (on January 27), Mrs. Karay texted Cromer: "Just confirmed ... it is a vote per device..... phone, computer etc ... [.]" OSOMF ¶ 37 (DE [66]) (ellipses in original). In a January 28 email Cromer sent to a non-party encouraging him to vote, she stated, "Please vote and [c]onsider running around to every device you see and voting! One vote per device!" (DE [71-1], at 4). After receiving Mrs. Karay's text message, Cromer informed other individuals that the Challenge's term was "one vote per device," and she encouraged others to use more than one device to vote. See (DE [71-2], at 2); (DE [71-3], at 2); (DE [71-4], at 2); (DE [71-5], at 2). Mrs. Karay herself believed it was cheating to vote for Be Strong multiple times from the same device, yet she did so herself. (DE [67-7], at 24, 26).
Cromer testified that the Karays told her that voting multiple times "was approved, encouraged, and appropriate behavior." (DE [62-7], at 14, 21). But Mr. Karay attested that Defendants never stated or implied that voting more than once, especially from the same device, was permissible. (DE [62-19] ¶ 8). Cromer also testified that Be Strong did not "promote" the behavior of one person voting multiple times—Be Strong's goal was to encourage as many people as possible to participate in the Challenge. (DE [62-7], at 33–34). Cromer further explained that Be Strong waited until the last three days of the Challenge to mobilize "the influencers and the celebrities" and to run targeted ads. (DE [62-7], at 27–28).
Be Strong Solicits Madwire's Help
Be Strong had previously worked with, Madwire, a digital advertising and marketing firm, and asked Madwire to help Be Strong recruit additional people to vote in the Challenge by sharing it with Madwire's team. Id. at 38. Summer Alameel from Madwire emailed Cromer on January 30, 2020, stating that Madwire developers were emailing her "with some not so white hat ideas" about the Challenge. (DE [62-13], at 2). When Cromer stated that she "wanted to better understand the developers[’] ideas," Alameel replied, "[I]ncognito window---you can vote repeatedly." (DE [62-12], at 2).
After Madwire alerted Be Strong to the use of "incognito mode," during the last six days of the Challenge, Be Strong received an average of 3,889 votes per day. (DE [62-5] ¶ 23). More than half of Be Strong's total 23,855 votes originated from only seven IP addresses located in Palm Beach and Broward Counties, Florida. Id. ¶ 17. Cromer and Be Strong's program manager Charity Urbaez both voted for Be Strong more than once from the same device set to incognito or private mode. OSOMF ¶¶ 22–24 (DE [66]). Cromer could not recall exactly how many times she voted. Id. ¶ 22. And although Mrs. Urbaez testified that she also could not recall exactly how many times she voted, she knew it was more than 50 times from the same device; she also used more than five devices at an Apple store to vote repeatedly from the same device. (DE [62-14], at 8–9). In fact, Park West's data indicates that Mrs. Urbaez and her husband, who live in the same home, cast 3,070 votes for Be Strong from the same IP address. OSOMF ¶ 25 (DE [66]). On another occasion, Mrs. Urbaez voted for Be Strong an additional 25 to 50 times from the same device, and her husband also voted for Be Strong between 10 and 25 times. OSOMF ¶ 27 (DE [66]). According to Mrs. Urbaez, Cromer instructed her and other employees to vote for Be Strong multiple times, including from the same device. Id. ¶ 28.
Matt Hayes, Be Strong's director of operations, similarly voted more than 50 times for Be Strong, including from the same device. Id. ¶ 29. Each time he voted, he saw the warning that he could vote only once. Id. Roy Moore, Be Strong's board chairman, also voted repeatedly from his iPhone. Id. ¶ 30. He saw the "[y]ou can only vote once" message yet voted repeatedly anyway. Id. Park West's data also indicates that 2,750 votes were cast for Be Strong from the IP address linked to Be Strong's offices, even though only a maximum of twelve employees worked at the offices during the Challenge. See id. ¶ 31. Be Strong also received 1,180 votes from two IP addresses in Dhaka, Bangladesh, though Be Strong has no offices there. Id. ¶ 32. According to Park West's web developer, Dhaka is known among web developers as a city that is "home to many ‘click farms’ that, for a fee, will hire individuals to click on web pages." (DE [62-5] ¶ 22).
Toward the end of the Challenge, Park West's then-vice president of marketing, John Lichtenberg, personally suspected that Be Strong was receiving so many votes through a click farm because "the votes were coming in so fast." (DE [62-10], at 4, 11). The then-chief marketing officer, Daniel Pingree, was also "surprised" at how many votes came in for Be Strong, but he did not personally investigate where the votes came from. (DE [62-2], at 6, 23). Mr. Karay called Moore and left a voicemail about the "flood of votes" that Be Strong was receiving, which seemed "suspicious" to him. (DE [62-19] ¶ 11). Moore called back and assured Mr. Karay that the votes were legitimate under the Challenge's terms. Id.
Be Strong Appears to Win First Place
When the Challenge closed, it appeared that Be Strong had received the most votes. OSOMF ¶ 39 (DE [66]); RSOMF ¶ 68 (DE [70]). Be Strong expected to be paid at the end of the challenge. RSOMF ¶ 68 (DE [70]). The next morning, on February 3, 2020, Park West's marketing coordinator emailed Cromer to inform her that Be Strong received 23,855 votes and would be announced as the first-place winner. (DE [62-1] ¶ 14). The marketing coordinator also informed Cromer that Park West would follow up with Be Strong in the coming weeks "regarding payment details/coordination of the $250,000 donation." Id. ¶ 15. That specific email did not explain when or how Park West would make the donation, nor did the marketing coordinator make any particular commitment to Be Strong about payment. See (DE [62-1], at 40); (DE [62-1] ¶ 15).
Park West's press release announcing Be Strong as the first-place winner stated that "the award donations will be presented to each charity in the weeks to come." (DE [67-11], at 2). After the press release was issued, internal emails among Park West employees indicated that the initial plan was to spread out the first-, second-, and third-prize donations over the year, with Be Strong to be paid in February 2021. (DE [67-23], at 2–4). Park West advised Be Strong that a "giant check" photo opportunity and a payment would be coordinated by the end of 2020. OSOMF ¶ 39 (DE [66]). In August 2020, Cromer reached out to Park West to inquire about the status of the donation, but Park West did not respond. (DE [67-28], at 2); (DE [62-7], at 17–18). To date, Park West has not made the donation to Be Strong, but it has paid a portion of each of the other winners’ donations. OSOMF ¶ 39 (DE [66]). Park West now moves for summary judgment.
II. LEGAL STANDARD
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). "A district court must grant a motion for summary judgment only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Essex Ins. Co. v. Barrett Moving & Storage, Inc. , 885 F.3d 1292, 1299 (11th Cir. 2018). An issue is "genuine" if a reasonable trier of fact, viewing all of the record evidence, could rationally find in favor of the nonmoving party in light of his burden of proof. Harrison v. Culliver , 746 F.3d 1288, 1298 (11th Cir. 2014). And a fact is "material" if, "under the applicable substantive law, it might affect the outcome of the case." Hickson Corp. v. N. Crossarm Co. , 357 F.3d 1256, 1259–60 (11th Cir. 2004). "[W]here the material facts are undisputed and do not support a reasonable inference in favor of the non-movant, summary judgment may properly be granted as a matter of law." DA Realty Holdings, LLC v. Tenn. Land Consultants , 631 F. App'x 817, 820 (11th Cir. 2015).
Nakava, LLC v. S. Pac. Elixir Co. , 2020 WL 4601641, at *1 (S.D. Fla. Aug. 10, 2020) (alteration in original).
III. DISCUSSION
There are three issues before the Court. First, whether the Challenge's one-vote rule was an established term of the parties’ contract and, if so, whether Be Strong's admitted violation of this term defeats its breach-of-contract claim. Next, the Court must determine whether there is a factual issue about Mrs. Karay and Park West's agency relationship. Lastly, the Court must determine whether Be Strong accepted the purportedly modified contract. The Court addresses each issue in turn.
A. No Unilateral Contract was Formed
Under Florida law, "a unilateral contract is, as the name implies, one-sided—one party promises to do something (for example, pay money) in exchange for performance (an act, forbearance, or conduct producing a certain result)." Kolodziej v. Mason , 774 F.3d 736, 740 n.3 (11th Cir. 2014) (citing Ballou v. Campbell , 179 So. 2d 228, 229–30 (Fla. 2d DCA 1965) ). To establish the existence of a unilateral contract, the plaintiff must prove: "(1) offer; (2) acceptance; (3) consideration; and (4) sufficient specification of the essential terms." Id. at 740–41 (quoting Vega v. T–Mobile USA, Inc. , 564 F.3d 1256, 1272 (11th Cir. 2009) ). A court evaluates mutual assent by "analyzing the parties’ agreement process in terms of offer and acceptance." Id. at 741 (footnote and citation omitted). "A valid contract—premised on the parties’ requisite willingness to contract—may be ‘manifested through written or spoken words, or inferred in whole or in part from the parties’ conduct.’ " Id. (quoting L & H Constr. Co. v. Circle Redmont, Inc. , 55 So. 3d 630, 634 (Fla. 5th DCA 2011) ).
The parties do not dispute that substantive Florida law on contracts applies. The Court has cited to Florida law when possible and has decided all issues under Florida law. But where the Court has found particularly helpful factual examples or legal propositions in out-of-jurisdiction cases or secondary authorities, the Court has cited those authorities as persuasive.
A contest is a form of unilateral contract in which the offeree must perform all terms of the offer to create a binding contract. See, e.g. , Shuey v. United States , 92 U.S. 73, 76, 23 L.Ed. 697 (1875) (holding that no unilateral contract is formed until the offeror complies with its terms); Simpson v. Zwinge , 531 F. App'x 985, 986 (11th Cir. 2013) (noting in a parenthetical that "the rules of a private contest represent an offer for a unilateral contract, and ... such offer may be accepted by fully performing all the contest's terms and conditions" (citation omitted)); United States v. Chandler , 388 F.3d 796, 801 (11th Cir. 2004) (stating that "the rules of a private contest are mere offers for a unilateral contract" (citing Waible v. McDonald's Corp. , 935 F.2d 924 (8th Cir. 1991) )); Otworth v. Fla. Bar , 71 F. Supp. 2d 1209, 1215 (M.D. Fla. 1999) ("[A]n offer of reward conveys no right beyond the specific terms of the offer ...." (alteration in original) (quoting United States v. Connor , 138 U.S. 61, 65, 11 S.Ct. 229, 34 L.Ed. 860 (1891) )); Sumerel v. Pinder , 83 So. 2d 692, 693 (Fla. 1955) ("To form a contract binding the offer[o]r, it was necessary that there be a meeting of the minds by an acceptance and performance within the terms of the offer." (citation omitted)).
Here, the undisputed evidence shows that Be Strong did not comply with the term of Park West's offer that "[y]ou can only vote once." It is undisputed that Park West did not expressly communicate this term to Be Strong when Mrs. Karay and Cromer were texting each other to add Be Strong to the Challenge. Nor was this term included in the overview email that Park West sent to Be Strong when Be Strong joined. Nevertheless, on the day the Challenge launched (before Be Strong joined), this single-vote term was included in the press release circulated online and was posted on Be Strong's Facebook and Instagram accounts.
Furthermore, after a user—including Be Strong's participants—voted, he or she would receive the message, "Thank you for your vote! You can only vote once." And if that were not clear enough, the term "[y]ou cannot vote again" was also shown to users if they tried to vote more than once from a cookied browser. Be Strong's witnesses and employees conceded that they ignored the single-vote term and voted multiple times for Be Strong, both from different devices and from the same device using private or incognito mode. Thus, the undisputed facts indicate that Be Strong did not participate in the Challenge according to its terms. In other words, no unilateral contract was formed because Be Strong never accepted the offer by performing the specific terms offered by Park West. See Kolodziej , 774 F.3d at 741 ; Simpson , 531 F. App'x at 986 ; Sumerel , 83 So. 2d at 693.
The Court is unpersuaded by Be Strong's argument that the single-vote term was not an "official" contest rule because it was never specifically communicated to Be Strong, either by text message or overview email, when Be Strong agreed to participate in the Challenge. See, e.g. , Fiorello v. Hewlett-Packard Co. , 2004 WL 2958672, at *2 (D.N.H. Dec. 22, 2004) ("[The plaintiff's] suggestion that he is not subject to the bonus program's rules, published on the [defendant's] web site, because he was personally uninformed of their full content , is of course without merit. The only possible obligations to [the plaintiff] undertaken by [the defendant] in connection with the promotion and award were those it created, as expressed in the contest rules posted on the web site." (emphasis added)). Be Strong essentially argues that the parties’ contract was a bilateral contract that excluded the single-vote term. See Reply 8 (DE [69]). As discussed above, the Challenge was a contest, and no contract was formed until Be Strong won the Challenge on Park West's terms. Cf. Miller v. State, Dep't of Lottery , 638 So. 2d 172, 174 (Fla. 1st DCA 1994) (holding that a winning lottery ticket must be presented before the lottery operator has any obligation to pay prize money, and that the lottery operator's performance is triggered by the possession of a winning ticket according to "the requirements for claiming the prize sought," not by simply purchasing the ticket); Illustration 3 in Restatement (Second) of Contracts § 32 (1981) ("[Person] A publishes the following offer: ‘I will pay $50 for the return of my diamond bracelet lost yesterday on State Street.’ B sees this advertisement and at once sends a letter to A, saying ‘I accept your offer and will search for this bracelet.’ There is no acceptance.").
Be Strong does not cite any authority supporting its argument that, because the offer was directed to Be Strong as one of the "selected" charities as opposed to the public at large, this is not a public contest such that the law on unilateral contracts applies. This is a distinction without a difference. Cf. Rosenthal v. Al Packer Ford, Inc. , 36 Md.App. 349, 374 A.2d 377, 379 (1977) ("All of the cases apply contract law to hold that a binding contract comes into being when a general offer to the public or a segment of the public is accepted, and also hold that performance of the specified act constitutes acceptance." (emphasis added) (footnotes omitted)); Illustration 4, Restatement (Second) of Contracts § 32 (1981) ("[Person] A writes to B, his nephew aged 16, that if B will refrain from drinking, using tobacco, swearing, and playing cards or billiards for money until he becomes 21 years of age, A will pay B $5,000. B makes a written reply promising so to refrain. There is probably no contract...."). Be Strong, like the other selected charities, had to perform according to the rules of the Challenge to win first, second, or third place. Thus, Park West's offer was not an "offer to participate" as Be Strong argues. See Resp. in Opp'n 12 (DE [65]). Rather, it was an offer to obtain the highest, second-highest, or third-highest number of votes in accordance with the Challenge's terms—one vote per person.
Further, all the terms and conditions of the Challenge need not necessarily be contained within a single "official rules" document as Be Strong argues; instead, the Court must give effect to each provision of the Challenge's public rules to interpret the contract as a whole. Cf. Michael Anthony Co. v. Palm Springs Townhomes , 174 So. 3d 428, 432 (Fla. 4th DCA 2015) ("[W]hen two or more documents are executed by the same parties at or near the same time, in the course of the same transaction, and concern the same subject matter, they will be read and construed together." (quoting Whitley v. Royal Trails Prop. Owners’ Ass'n , 910 So. 2d 381, 383 (Fla. 5th DCA 2005) )); Harlem-Irving Realty, Inc. v. Alesi , 99 Ill.App.3d 932, 55 Ill.Dec. 181, 425 N.E.2d 1354, 1356–57 (1981) (where contest terms that were published on poster in shopping plaza's common area slightly differed from language used in terms published in newspaper advertisement, court considered posters and advertisements together as "one transaction" to give effect to parties’ intention as to binding rules of contest).
It is undisputed that Be Strong's voters in this case learned of the single-vote term—which was displayed to them during the Challenge—yet failed to comply with that term. See James v. McDonald's Corp. , 417 F.3d 672, 677 (7th Cir. 2005) ("As a general rule, a participant in a prize-winning contest must comply with the terms of the contest's rules in order to form a valid and binding contract with the contest promoter. The promoter's obligation is limited by the terms of the offer, including the conditions and rules of the contest that are made public." (collecting cases)). Be Strong also tries to factually distinguish Park West's cited cases as involving clear and unambiguous terms, unlike here. The Court rejects this argument. The record indicates that nothing about the single-vote term of the Challenge was unclear or ambiguous; there was "sufficient specification" of this essential term. See Kolodziej , 774 F.3d at 740. Because Be Strong failed to perform in accordance with the offer, no unilateral contract was formed.
B. A Factual Issue Exists About Mrs. Karay's Agency Relationship with Park West
Next, the Court must determine whether a factual issue exists about whether Mrs. Karay was Park West's apparent agent and whether she modified the terms of the Challenge (from one vote per person to one vote per device). Under Florida law, "[a]pparent authority is a form of estoppel [which arises] from ‘the authority a principal knowingly tolerates or allows an agent to assume, or which the principal by his actions or words holds the agent out as possessing.’ " Marchisio v. Carrington Mortg. Servs., LLC , 919 F.3d 1288, 1312 (11th Cir. 2019) (second alteration in original) (quoting Regions Bank v. Maroone Chevrolet, L.L.C. , 118 So. 3d 251, 255 (Fla. 3d DCA 2013) ).
"Apparent agency exists only where the principal creates the appearance of authority." Id. (citation omitted); see also Regions Bank , 118 So. 3d at 255 ("[T]he focus is on the conduct or words of the principal, not those of the purported agent or the understanding of the person dealing with the purported agent."). To establish apparent agency, the plaintiff must prove: "(1) a representation by the purported principal; (2) reliance on that representation by a third party; and (3) a change in position by the third party relying on the representation." Fla. Power & Light Co. v. McRoberts , 257 So. 3d 1023, 1026 (Fla. 4th DCA 2018) (quoting Lensa Corp. v. Poinciana Gardens Ass'n, Inc. , 765 So. 2d 296, 298 (Fla. 4th DCA 2000) ). "[A] third party's reliance on the apparent authority of an agent must be reasonable." Id. (citing Lensa Corp. , 765 So. 2d at 298 ).
Generally, "[t]he existence of an agency relationship, the nature and extent of the agent's authority, and the inclusion within the scope of that authority of a particular act" are factual questions for the jury. Citibank, N.A. v. Data Lease Fin. Corp. , 828 F.2d 686, 691 (11th Cir. 1987) (alteration in original) (quoting Fin. Fire & Cas. Co. v. Southmost Vegetable Co-op. Ass'n , 212 So. 2d 69, 71 (Fla. 3d DCA 1968) ). Under some circumstances, however, the Court may decide the agency issue as a matter of law on summary judgment. See, e.g. , Johnson v. Unique Vacations, Inc. , 498 F. App'x 892, 896 (11th Cir. 2012) ("Despite plaintiffs’ claims of an agency relationship between International Pony Club and defendants, the mere allegation of agency is insufficient to create a principal/agent relationship.... Here, plaintiffs have presented no evidence indicating that defendants owned, operated, or controlled International Pony Club. As such, plaintiffs’ speculations are insufficient to create an issue of fact about agency; and the district court properly granted summary judgment to defendants." (internal citation omitted)).
Here, Be Strong asserts that "there is no question" that Park West knew that Mrs. Karay was acting on its behalf and helped her do so. Resp. in Opp'n 14 (DE [65]). Park West argues that even if Mrs. Karay were Park West's apparent agent, Be Strong still admits that it violated the purportedly modified term of "one vote per device." The Court agrees with Be Strong that there is a factual issue about whether Mrs. Karay was Park West's apparent agent. The record evidence is conflicting on this point, and the Court cannot make its own credibility determinations about whom to believe. See Mize v. Jefferson City Bd. of Educ. , 93 F.3d 739, 742 (11th Cir. 1996) ("It is not the court's role to weigh conflicting evidence or to make credibility determinations; the non-movant's evidence is to be accepted for purposes of summary judgment." (citations omitted)); see also Data Lease Fin. Corp. , 828 F.2d at 691.
For example, Be Strong asserts that, at a church event, Mrs. Karay introduced herself to Be Strong's founder as Park West's "head of charitable giving," and Mr. Karay—Park West's senior vice president of operations—was present and did not deny it. In contrast, Mrs. Karay denies that she introduced herself in that capacity. There is also no doubt that Mrs. Karay texted Cromer about adding Be Strong to the Challenge (after speaking to Mr. Karay about it), though the parties dispute whether Mrs. Karay was acting in the capacity of Cromer's friend or Park West's agent. Mr. Karay also could not provide an explanation of how someone dealing with Mrs. Karay would know that she was not officially employed by Park West considering she asked Be Strong to join the Challenge.
Several Park West employees also knew that Mrs. Karay was communicating with Be Strong about the Challenge. Indeed, Cromer sent Be Strong's logo and information directly to Mrs. Karay to be added to the Challenge's website. On the other hand, all emails between Mrs. Karay and Be Strong were from Mrs. Karay's personal email address, whereas Park West employees communicated with Be Strong using Park West-issued email addresses. And although Mr. Karay testified in his deposition that Mrs. Karay was "part of the company through [him]" and that they were "one [and] the same," Mr. Karay was speaking about his 30-year marriage and testified in the next sentence that Mrs. Karay "doesn't work for the company." (DE [67-5], at 19). Viewing this evidence in the light most favorable to Be Strong, a reasonable jury could find that Mrs. Karay did, in fact, hold herself out as having the authority to act on Park West's behalf, that Park West knew of Mrs. Karay's actions, and that Park West allowed Mrs. Karay to continue her actions. Thus, the Court finds that a factual issue remains about an agency relationship between Mrs. Karay and Park West.
C. Summary Judgment is Warranted Because Be Strong Failed to Comply with the Modified Contract
Nevertheless, the Court must determine whether, even if Mrs. Karay was Park West's apparent agent who modified the Challenge's terms, Be Strong complied with the modified term. If not, then no unilateral contract was formed, and there is no jury question. Even viewing the evidence in the light most favorable to Be Strong and assuming Mrs. Karay was Park West's apparent agent, Mrs. Karay informed Cromer that the rule was "one vote per device." As Be Strong concedes, the undisputed evidence shows that Be Strong's witnesses voted more than once from the same device using private or incognito mode. At no time during the Challenge did Park West approve of individuals voting repeatedly from the same device as constituting compliance with the Challenge's terms. Indeed, after Mrs. Karay texted Cromer on January 27 that the rule was "one vote per device," Be Strong's subsequent emails and text messages to other individuals indicate that Be Strong acknowledged this term to mean that a single vote could be cast from each device. Be Strong learned from Madwire on January 30 that individuals could bypass the cookied solution by using private or incognito mode to vote repeatedly from the same device. The Court does not find that either the original term (individuals can vote only once) or the purportedly modified term (one vote per device) is ambiguous as Be Strong argues. Thus, even assuming the contract was modified, it is undisputed that Be Strong still did not accept Park West's offer by performing the modified terms.
The Court acknowledges that the record evidence shows that Mrs. Karay herself voted more than once from the same device. Mrs. Karay sent a text message to an unspecified person named "Michelle," who apparently worked at another charity participating in the Challenge. See (DE [67-7], at 12). Mrs. Karay told Michelle that the rule was "a vote per device.... meaning vote on your computer, your phone, and iPad ...[.]" (DE [67-10], at 2) (ellipses in original). Michelle responded, "No way!! I [th]ought that was wrong!" Id. Mrs. Karay neither agreed nor disagreed with this statement. See id. Mrs. Karay also told Michelle, "Shhh my phone just let me vote again." (DE [67-21], at 2). The time stamps are not visible on these text messages, and Defendants challenge them as unauthenticated and hearsay. See RSOMF ¶ 63 (DE [70]).
The Court finds that these facts are not material to whether Be Strong itself complied with the Challenge's terms such that it accepted the offer that was communicated to the Challenge's participants. In any event, Mrs. Karay conceded that her actions constituted cheating under the Challenge's terms. See (DE [67-7], at 24, 26).
The parties disagree about whether any modification was valid and enforceable as supported by new consideration. Compare Mot. for Summary Judgment 24–25 (DE [60]), and Reply 13–14 (DE [69]), with Resp. in Opp'n 16–18 (DE [65]). The Court need not conclusively determine whether a valid modification existed because it is undisputed that Be Strong failed to accept Park West's offer.
D. Judicial Notice
Park West has also filed a Request for Judicial Notice in Support of Its Summary Judgment Motion (DE [63]). Park West asks the Court to take judicial notice of: (1) the January 20, 2020 PR Newswire press release about the Challenge (DE [63-1]); and (2) a "printout" of the error message of "[y]ou cannot vote again" from the Challenge's voting page (DE [63-2]). See Fed. R. Evid. 201(b)(2) ("The court may judicially notice a fact that is not subject to reasonable dispute because it: ... can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.").
Be Strong opposes the request as to the printout of the error message. See (DE [68], at 1–2). As discussed in other sections of this Order, the Court has already considered both documents because they were undisputed material facts admitted through means other than judicial notice. Accordingly, the Court DENIES AS MOOT Park West's request to admit these documents by judicial notice.
IV. CONCLUSION
For the reasons discussed above, the Court finds that no unilateral contract was formed. And, even if Mrs. Karay had the authority to modify the contract's terms, Be Strong failed to accept the offer of the modified terms. Thus, Be Strong's breach-of-contract claim fails, and Defendants are entitled to summary judgment in their favor. Accordingly, it is hereby
ORDERED AND ADJUDGED that Defendants’ Motion for Summary Judgment (DE [60]) is GRANTED , and the request for a hearing on the Motion is DENIED . Final judgment will be entered separately. The Court also DENIES AS MOOT Defendants’ Request for Judicial Notice in Support of Their Summary Judgment Motion (DE [63]).
DONE AND ORDERED in Chambers, Fort Lauderdale, Florida, this 29th day of October 2021.