Gursheel Dhillon v. Zions First National Bank, et al.

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 6, 2012
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-13873
Non-Argument Calendar
________________________
D.C. Docket No. 1:11-cv-01234-CAP
GURSHEEL DHILLON,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellant,
versus
ZIONS FIRST NATIONAL BANK,
JOHN AND JANE DOES 1-10,
JOHN AND JANE DOES 1-100,
JOHN AND JANE DOES 1-25,
llllllllllllllllllllllllllllllllllllllll Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(March 6, 2012)
Before CARNES, PRYOR, and KRAVITCH, Circuit Judges.
PER CURIAM:

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Gursheel Dhillon, proceeding pro se, appeals the district court’s dismissal of
his breach of contract and fraud claims against Zions First National Bank, a Utah-
based corporation, and various unnamed defendants (collectively, Zions). Dhillon
contends that the district court erred by: (1) applying Georgia and Tennessee law,
(2) ruling that he failed to state a claim for relief on his breach of contract
allegations, and (3) determining that his fraud claim was not pleaded with the
specificity required by Federal Rule of Civil Procedure 9(b).
I.
A.
Dhillon, a Tennessee resident and a “speculative real estate investor,”
contacted Zions about properties it had listed online for sale, two of which are the
subject of the present case: a car wash in Cobb County, Georgia, and a retail strip
mall in Gwinnett County, Georgia. Dhillon sent an offer to a Zions real estate
“disposition officer” to purchase the car wash for $469,000 and the strip mall for
$600,000. Dhillon signed a negotiation agreement provided by Zions, which
acknowledged that: (1) “email messages originating from either party or their
respective agents during the negotiation process shall be considered verbal in
nature and shall not be binding on either party,” (2) any “verbal offer, acceptance
or agreement . . . is not a binding agreement until both Parties execute a written
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contract,” and (3) a contract must be signed by both parties to be valid.
The Zions disposition officer e-mailed Dhillon a counteroffer, listing the
original asking price for the properties: $525,000 for the car wash and $850,000
for the strip mall. The disposition officer’s e-mails included a disclaimer that read
in part:
This e-mail may contain a price or other contract term for the sale of real
property. The price or other contract term contained in this email is
subject to approval by Zions First National Bank’s executive
management committee or its designee and is not binding until the
executive management committee or its designee provides such approval
in writing to the prospective purchaser.
By e-mail, Dhillon accepted the offer and requested information on how to
make a deposit. Following Zions’ instructions, he sent Zions a $75,000 check.
Zions then sent Dhillon a purchase sales agreement, which had not been signed by
any Zions official and that had missing terms, including the address or a
description of the properties and their purchase price. Dhillon signed the
agreement and returned it to Zions, but Zions later refused to sign the agreement
and returned Dhillon’s deposit.
B.
Dhillon filed two lawsuits against Zions in Georgia state court, and Zions
removed the cases to federal district court based on diversity of citizenship.
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Dhillon filed an amended complaint, which merged his allegations into a single
case, that alleged breach of contract and fraud claims. Zions moved to dismiss the
amended complaint, and the district court granted that motion, dismissing
Dhillon’s breach of contract claim because it failed to state a claim for relief under
Rule 12(b)(6). The court ruled that under either Georgia or Tennessee law,
Dhillon’s amended complaint, which attached his e-mail correspondence with
Zions and Zions’ unsigned purchase sales agreement, showed that the parties did
not enter into a contract. The district court also dismissed Dhillon’s fraud claim
but granted him leave to amend his complaint to comply with the particularity
requirements for pleading fraud claims under Rule 9(b).
Dhillon filed a second amended complaint, and Zions filed a new motion to1
dismiss. The district court granted that motion because the second amended
complaint was filed late and still did not comply with Rule 9(b). The district court
denied Dhillon’s request for leave to amend his complaint again. This is Dhillon’s
appeal.
II.
Dhillon’s second amended complaint also brought new claims for relief, but the district1
court dismissed those claims because Dhillon failed to get written consent from Zions or
permission from the court as required by Rule 15(a)(2) to amend his complaint. Dhillon’s initial
brief on appeal does not contend that the district court erred in this decision, so any contentions
regarding those claims are abandoned. See Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570,
1573 n.6 (11th Cir. 1989).
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We review de novo a conflict-of-laws issue. Grupo Televisa, S.A. v.
Telemundo Comms. Group, Inc., 485 F.3d 1233, 1239 (11th Cir. 2007). “A
federal court sitting in diversity will apply the conflict-of-laws rules of the forum
state.” Id. at 1240. However, if the laws of competing states are “substantially
similar,” no conflict actually exists and “the court should avoid the conflicts
question and simply decide the issue under the law of each of the interested
states.” Cooper v. Meridian Yachts, Ltd., 575 F.3d 1151, 1171 (11th Cir. 2009)
(quotation marks omitted). That is precisely what the district court did by
analyzing and dismissing Dhillon’s contract claim under both Tennessee and
Georgia law. Dhillon contends that the district court should have applied only
Tennessee’s law. Assuming the court correctly applied Tennessee law, which we
will consider next, Dhillon was not disadvantaged by the court’s application of
Georgia law in addition to its consideration of Tennessee law. Therefore, his
choice-of-law contention is meritless.
III.
“We review de novo a district court’s order dismissing a complaint under
Rule 12(b)(6).” F.T.C. v. Phoebe Putney Health Sys., Inc., 663 F.3d 1369, 1375
(11th Cir. 2011). “We accept the factual allegations in the complaint as true and
construe them in the light most favorable to the plaintiff; we are not, however,
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bound to accept as true a legal conclusion couched as a factual allegation.” Id.
(alterations, citation, and quotation marks omitted). Moreover, “[c]onclusory
allegations and unwarranted deductions of fact are not admitted as true, especially
when such conclusions are contradicted by facts disclosed by a document
appended to the complaint. If the appended document . . . reveals facts which
foreclose recovery as a matter of law, dismissal is appropriate.” Assoc. Builders,
Inc. v. Ala. Power Co., 505 F.2d 97, 100 (5th Cir. 1974) (citation omitted). Also,2
“[i]n ruling upon a motion to dismiss, the district court may consider an extrinsic
document if it is (1) central to the plaintiff’s claim, and (2) its authenticity is not
challenged.” Speaker v. U.S. Dept. of Health & Human Servs. Ctrs. for Disease
Control & Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010) (quotation marks
omitted). We may affirm the district court’s judgment on any basis supported in
the record. See Cruz v. Cingular Wireless, LLC, 648 F.3d 1205, 1210 n.10 (11th
Cir. 2011).
Lastly, pro se pleadings are liberally construed, Miller v. Donald, 541 F.3d
1091, 1100 (11th Cir. 2008), but pro se litigants still must comply with procedural
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we2
adopted as binding precedent all of the decisions of the Fifth Circuit handed down prior to
October 1, 1981.
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rules. Albra v. Advan, Inc., 490 F.3d 826, 830 (11th Cir. 2007).
A.
Dhillon contends that the district court erred by dismissing his breach of
contract claim under Rule 12(b)(6). The Tennessee statute of frauds requires that
all contracts for the conveyance of land be in writing and be “signed by the party
to be charged therewith.” Tenn. Code Ann. § 29-2-101(4)–(5). “A contract must
result from a meeting of the minds of the parties in mutual assent to the terms . . . .
In determining mutuality of assent, courts must apply an objective standard based
upon the parties’ manifestations.” Advanced Photographic Solutions, LLC v.
Nat’l Studios, Inc., 352 S.W.3d 431, 442 (Tenn. Ct. App. 2011) (quotation marks
omitted).
Dhillon argues that two writings attached to his amended complaint show a
binding contract: (1) Zions’ counteroffer and (2) the purchase sales agreement.
The counteroffer was not a binding contract because Zions did not sign it and
there was no meeting of the minds to form a contract by e-mail. See id. Dhillon’s
exhibits to his amended complaint reveal facts—specifically, the e-mail
disclaimers—that foreclose any contention that Zions sought to form a valid
contract via e-mail. See Assoc. Builders, Inc., 505 F.2d at 100. Nor could Dhillon
have reasonably expected that the e-mail counteroffer constituted a binding
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contract because he had already signed the negotiation agreement acknowledging
that e-mail correspondence between him and Zions was not a binding agreement
and that any contract would have to be signed by both parties.
The purchase sales agreement was not a binding contract either under
Tennessee’s statute of frauds because the party against whom Dhillon seeks to
charge with violating it, Zions, never signed the agreement. See Tenn. Code Ann.
§ 29-2-101(a)(4)–(5).
Dhillon argues that two Tennessee cases create exceptions to the traditional
statute of frauds and that those exceptions apply in the present case. We disagree.
In Yates v. Skaggs, 213 S.W.2d 41 (Tenn. 1948), the Tennessee Supreme Court
considered whether a franchisee could enforce a memorandum amending its earlier
contract with its franchisor. Both parties signed the earlier contract, which had no
integration clause and had explicitly contemplated further amendments, but only
the franchisee signed the memorandum, which the franchisor had prepared. Id. at
42–43. The court held that not all writings to a contract had to comply with the
statute of frauds if the writings can “legally be connected with the agreement
which was signed.” Id. at 43 (emphasis added). In the present case, there was no
writing signed by both parties and the proposed purchase sales agreement
contained an integration clause that explicitly rejected any additions that were
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unwritten or unsigned.3
The second case Dhillon relies on, Batey v. D.H. Overmyer Warehouse Co.,
446 S.W.2d 686, 693 (Tenn. Ct. App. 1969), also is distinguishable from this case.
There, the court held that the statute of frauds could not shield a landlord from
performing a lease agreement, which the landlord prepared but that only its tenant
signed, because the landlord acted in accordance with that lease, renting the tenant
the property and depositing his rent checks. Id. at 692–93. In the present case,
Zions cancelled negotiations and returned Dhillon’s deposit. There was no partial
performance by Zions on which Dhillon can hang his lawsuit.
Dhillon’s amended complaint and undisputed evidence in the record show
that he and Zions did not enter into a contract for the sale of the Georgia properties
under Tennessee law. Without a contract, there can be no breach. The district
court did not err in ruling that he failed to state a claim for relief on this ground.
B.
Dhillon next contends that the district court erred by dismissing his fraud
The clause in the purchase sales agreement read:3
This Agreement contains the entire agreement between Seller and Purchaser
concerning the sale of the Property, and no statement, agreement, representation,
or understanding shall be binding on either party unless it is contained in this
Agreement. No modification of this Agreement shall be binding on either party
unless in writing and signed by the party to be bound.
Purchase and Sale Agreement, ¶ 12.
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claim because his second amended complaint did not comply with the Rule 9(b)
pleading requirements. Under Tennessee law, fraud claims must allege: “(1) an
intentional misrepresentation of a material fact, (2) knowledge of the
representation’s falsity, (3) an injury caused by reasonable reliance on the
representation, and (4) . . . that the misrepresentation involve[d] a past or existing
fact.” Kincaid v. SouthTrust Bank, 221 S.W.3d 32, 40 (Tenn. Ct. App. 2006).
Dhillon argues that Zions falsely represented that his acceptance of the
counteroffer created a binding contract to sell the Georgia properties. But in light
of the e-mail disclaimers and the negotiation agreement he signed, any belief he
had that his e-mailed acceptance of the counteroffer had created a binding contract
was unreasonable. Because Dhillon does not allege any reasonable reliance on
any false representations by Zions, his second amended complaint does not state a
viable fraud claim.
AFFIRMED.
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