Beeper Vibes, Inc. v. Simon Prop. Group

Beeper Vibes, Inc. v. Simon Prop. Group

Opinion

 [*316]  SUTTON, Circuit Judge. The best-laid plans of cellphone vendors, like those of many others, sometimes go awry. Representatives of Simon Property Group promised Beeper Vibes that it [**2]  would "make a lot of money" operating cellphone kiosks in five Florida malls. The kiosks failed to turn a profit, prompting Beeper Vibes to abandon them and to sue Simon for fraud and conversion. Simon responded in kind with counterclaims for breach of contract. The district court dismissed some of the claims on summary judgment and held a bench trial on the others. We affirm each of its decisions and its judgment in favor of Simon.

From its base in Ohio, Beeper Vibes sells Verizon Wireless cellphones from kiosks in malls throughout the Midwest. Independent dealerships such as Beeper Vibes must receive Verizon's authorization before they can sell Verizon's products, and in 2010 Verizon told Beeper Vibes it would be willing to approve new locations in Florida. So Beeper Vibes's vice president met with representatives of Simon Property Group to discuss setting up shop in five malls there. Beeper Vibes's main concern with migrating south was the possibility of competition with one of "the big dealers," such as Best Buy Mobile or Radio Shack. R. 38 at 505. Beeper Vibes claims it never would have entered the Florida market if one of these "corporate stores" was planning to open in the [**3]  malls. Id.

Beeper Vibes asked Simon whether it would be the only Verizon dealer in the Florida malls. In March, a manager of Boynton Beach Mall responded to Beeper Vibes's questions with, "[T]here's nothing else coming in, to [my] knowledge." Id. That same month, a Simon representative told Beeper Vibes that "some national tenant" planned to open in two of the malls but that "he didn't know" what company it was. Id. at 514. In April, Beeper Vibes emailed Simon and asked for "[n]o other  [*317]  Verizon Wireless location inside the mall, corporate or indirect." R. 34 at 435. This last request went unanswered.

Communication between Beeper Vibes and Simon did not improve as Beeper Vibes made preparations to enter the Florida market. The company initially planned to open kiosks in two Florida malls, Boynton Beach and Coral Square, on July 1, 2010. To that end, it sent Simon a signed copy of the lease around June 16. R. 38 at 536. Yet by June 30, Beeper Vibes still did not have an executed lease signed by Simon for either mall. When Beeper Vibes complained, a Simon representative instructed Beeper Vibes to "just go ahead and move in" anyway. Id. On July 1 or 2, Beeper Vibes opened its two kiosks without a lease. Id. at 537 ("They [**4]  tendered possession to us without the signed leases in hand. And we moved in."); id. at 568.

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.