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Filing # 196999323 E-Filed 04/25/2024 01:45:50 PM
IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT
IN AND FOR INDIAN RIVER COUNTY, FLORIDA
CASE NO.: 31-2023-CA-000899
MICHAEL MERRILL, an individual,
Plaintiff,
Vs.
ROBERT GIBB, an individual, and
JOHN’S ISLAND REAL ESTATE
CO., a Florida profit corporation,
Defendants.
ees
ae eee ee
INDEX TO KEY LEGAL AUTHORITIES SUPPORTING THE DEFENDANTS’ JOINT
MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT
L. Plaintiffs Tortious Interference Claims (Counts I and II)
l: Fla. Tel. Corp. v. Essig, 468 So. 2d 543 (Fla. Sth DCA 1985) (The elements of a
cause of action for tortious interference with a contractual relationship are: (1) The
existence of a contract, (2) The defendant's knowledge of the contract, (3) The
defendant's intentional procurement of the contract's breach, (4) Absence of any
justification or privilege, [and] (5) Damages resulting from the breach.)
2; Smith y, Ocean State Bank, 335 So. 2d 641 (Fla. 1st DCA 1976) (The elements of
a claim for tortious interference with a business relationship and tortious
interference with a contract are the same, with the only difference being that “in
one there is a contract and in the other there is only a business relationship.”)
3. Abele v. Sawyer, 750 So. 2d 70 (Fla. 4th DCA 1999) (Justification or privilege to
interfere with a contract is a defense to a tortious interference action; Where an
affirmative defense appears on the face of the complaint, it may be raised in a
motion to dismiss.)
4, Int'l Expositions, Inc. v. City ofMiami Beach, 274 So. 2d 29 (Fla. 3d DCA 1973)
(Florida law recognizes competition between competitors, and if there is an
interference with a non-exclusive right this is a privileged interference.)
1
5. Weisman vy. S. Wine & Spirits ofAm., Inc., 297 So. 3d 646 (Fla. 4th DCA 2020)
(The competition privilege is a defense to a tortious interference claim which is
generally applied where two companies compete over a contract or business. The
protection privilege, the privilege to interfere to protect one's own financial and
contractual interests, is a defense to a claim of tortious interference requiring the
defendant to only show that improper means were not employed to protect its own
financial and contractual interests.)
6. Reed v. Quatkemeyer, 647 So. 2d 172 (Fla. 2d DCA 1994) (The Supreme Court of
Florida has held where no property interest is involved, the courts will not interfere
with the decisions of fraternal organizations with regard to its grievances absent
fraud or bad faith.)
7. Pentecostal Holiness Church, Inc. v. Mauney, 270 So. 2d 762 (Fla. 4th DCA 1972)
(A motion to strike matter as redundant, immaterial or scandalous should be granted
if material is wholly irrelevant, can have no bearing on equities, and no influence
on decision.)
8. Morse vy. Ripken, 707 So. 2d 921 (Fla. 4th DCA 1998) (holding that statements of
pure opinion are not actionable under the First Amendment: “However pernicious
an opinion may seem, we depend for its correction not on the conscience ofjudges
and juries, but on the competition of other ideas.”’)
9. Dade Enterprises v. Wometco Theatres, 160 So. 209 (Fla. 1935) The Florida
Supreme Court has long held that no liability for tortious interference exists unless
the plaintiff can establish that the defendant wrongfully induced another party to
breach a contract or sever a business relationship.)
10. | Camp Creek Hosp. Inns, Inc. v. Sheraton Franchise Corp., 139 F.3d 1396 (11th
Cir. 1998) (“[Plaintiff] has presented no evidence to distinguish between persons
who chose not to stay at [Plaintiff's business] as a result of [Defendants’] bad acts
and those who simply rejected [Plaintiff] because [Defendants] presented a more
attractive or simply an additional choice. [Plaintiffs] failure to identify a causal
connection between [Defendants’] tortious activity and the interruption of any
particular business relationship requires us to affirm the district court’s grant of
summary judgment.”)
11. St. Johns River Water Mgmt. Dist. v. Fernberg Geological Services, Inc., 784 So.
2d 500 (Fla. 5th DCA 2001) (As with most other torts, embedded within the
essential elements of the tort of intentional interference with a business relationship
is the legal requirement that the plaintiff prove causation.)
2
12. Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113 (Fla. 1988) (Both
civil and criminal court proceedings are public events and there is strong
presumption of public access to these proceedings and their records, subject to
narrowly defined exceptions.)
II. Plaintiff's Civil Conspiracy Claims (Counts III and IV)
13. Mancinelli v. Davis, 217 So. 3d 1034 (Fla. 4th DCA 2017) (As a general
proposition, the intra-corporate conspiracy doctrine, under which neither an agent
nor an employee can conspire with his or her corporate principal or employer,
precludes the claim of conspiracy against individuals and their corporation for
wholly internal agreements to commit wrongful or actionable conduct.)
14. Alhassid v. Bank ofAm., N.A., 60 F. Supp. 3d 1302 (S.D. Fla. 2014) (Florida does
not recognize an independent cause of action for civil conspiracy; rather, a plaintiff
must allege an underlying illegal act or tort on which conspiracy is based.)
15. Raimi v. Furlong, 702 So. 2d 1273 (Fla. 3d DCA 1997) (Actionable civil conspiracy
requires actionable underlying tort or wrong.)
Ill. = Plaintiff?s RICO Claims (Counts V and VI)
16. Palmas ¥ Bambu, S.A. v. EI. Dupont De Nemours & Co., Inc., 881 So. 2d 565 (Fla.
3d DCA 2004) (Indirect injuries, that is injuries sustained not as a direct result of
predicate acts, will not allow recovery under Florida Racketeer Influenced and
Corrupt Organizations Act (RICO).)
17. Davis v. Bay Cnty. Jail, 155 So. 3d 1173 (Fla. Ist DCA 2014) (Threadbare recitals
of the elements of a cause of action are legally insufficient to satisfy the ultimate
fact pleading requirements under the Florida Rules of Civil Procedure.)
18. Compagnie De Reassurance D'lle de France v. New England Reinsurance Corp.,
57 F.3d 56 (1st Cir. 1995), as amended on denial of reh'g (July 12, 1995) (Plaintiff
has failed to allege ultimate facts to establish that Plaintiff suffered an injury
proximately caused by Defendants’ “investment” in the purported racketeering
enterprise.)
19. Am. Dental Ass’n. v. Cigna Corp., 605 F. 3d 1283, 1293-95 (11th Cir. 2010) (Two
or more persons reaching an agreement to commit a RICO offense is an essential
element of a RICO conspiracy claim.)
20. Doyle v. Hasbro, Inc., 103 F.3d 186 (1st Cir. 1996) (Under Racketeer Influenced
and Corrupt Organizations Act (RICO) § 1962(c) claim, unlawful enterprise itself
cannot also be the person plaintiff charges with conducting it; in order to succeed,
3
complaint must allege the existence of a person distinct from the existence of an
enterprise.)
21. Oglesbee v. IndyMac Fin. Services, Inc., 686 F. Supp. 2d 1313 (S.D. Fla. 2010)
(Since incidents of criminal activity alleged by mortgagor, besides allegations of
perjury, arose out of the same mortgage loan transaction, they did not qualify as a
“pattern of criminal activity” under Florida Racketeer Influenced and Corrupt
Organizations Act (RICO) statute.)
IV. Plaintiff’s Antitrust Claims (Counts VII and VIII)
22. ~—-Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (An allegation of parallel business
conduct and a bare assertion of conspiracy will not suffice to state a claim under
Sherman Act's restraint of trade provision; without more, parallel conduct does not
suggest conspiracy, and a conclusory allegation of agreement at some unidentified
point does not supply facts adequate to show illegality.)
23. Walker Process Equip., Inc. v. Food Mach. & Chem. Corp., 382 U.S. 172 (1965)
(To establish monopolization or attempt to monopolize a part of trade or commerce
under Sherman Act by maintenance and enforcement of patent obtained by fraud
on patent office, it would be necessary to appraise the exclusionary power of the
illegal patent claim in terms of the relevant market for the product involved.)
24. Okeelanta Power Lid. P'ship v. Florida Power & Light Co., 766 So. 2d 264 (Fla.
4th DCA 2000) (Mere allegations that a party has violated the antitrust laws are
insufficient to survive a motion to dismiss; the party must plead sufficient facts to
establish each element and cannot use terms which are conclusory. Plaintiff has
failed to define both the relevant geographic market and the product or service at
issue.)
25. Jacobs v. Tempur-Pedic Intern., Inc., 626 F.3d 1327 (11th Cir. 2010) (affirming
dismissal of antitrust complaint for failing to define relevant market.)
26. U.S. Anchor Mfg., Inc. v. Rule Indus., Inc., 7 F.3d 986 (11th Cir. 1993), certified
question answered, 264 Ga. 295, 443 S.E.2d 833 (1994) (Three essential elements
of claim alleging attempted monopolization are: plaintiff must show that defendant
possessed specific intent to achieve monopoly power by predatory or exclusionary
conduct; defendant must in fact commit such anticompetitive conduct; and there
must have existed a dangerous probability that defendant might have succeeded in
its attempt to achieve monopoly power.)
27. Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477 (1977) (Plaintiffs must
prove “antitrust injury, which is to say injury of the type the antitrust laws were
intended to prevent.”)
4
DATED this 24th day, of April 2024.
/s/ Dylan J. Hooper
JOHN A. BOUDET, ESQUIRE
Florida Bar No. 515670
john.boudet@gray-robinson.com
clara.torres@gray-robinson.com
DYLAN J. HOOPER, ESQUIRE
Florida Bar No.: 1018147
Primary E-mail Address:
Dylan.hooper@gray-robinson.com
GRAY | ROBINSON, P.A.
301 East Pine Street, Suite 1400
Orlando, Florida 32801
Telephone: 407.843.8880
Facsimile: 407.244.5690
Counselfor Defendant
John’s Island Real Estate Co.
/s/_ Elisa C. Mills
Lewis W. Murphy Jr.
Florida Bar No, 09467
Elisa C.Mills
Florida Bar No, 110763
MURPHY & WALKER, P.L.
Counselfor Defendant Robert Gibb
2001 U.S. Highway |
Vero Beach, Florida 32960
E-Mails: wmurphy@murphywalker.com
emills@murphywalker.com
pleadings-murphy@murphywalker.com
Telephone: (772)231-1900
Facsimile: (772)23 1-4387
5
CERTIFICATE OF SERVICE
I] HEREBY CERTIFY that on this 24th day of April 2024, I electronically filed the
foregoing with the Clerk of the Court via the Florida Courts’ e-Filing Portal, pursuant to and in
compliance with Rule 2.516, Florida Rules ofJudicial Administration, which will complete service
by furnishing a true and correct copy of the foregoing via electronic mail to all counsel of record.
/s/ Dylan J. Hooper
Dylan J. Hooper
6
Florida Telephone Corp. v. Essig, 468 So.2d 543 (1985)
10 Fla. L. Weekly 1216
56 Cases that cite this headnote
re KeyCite Yellow Flag
- Negative Treatment
Distinguished by Sobi v, Fairfield Resorts, Inc., Fla.App. 5 Dist., June 6, 2003 :
468 So.2d 543 \2] Torts *~ Contracts in general
District Court of Appeal of Florida, Fifth District. Telephone cable splicing contract expressly
permitted telephone company to request that
FLORIDA TELEPHONE CORPORATION, general contractor remove from the job any
Appellant/Cross-Appellee, employees of the contractor or its subcontractors
who were not doing an adequate job or
V. were conducting themselves in inappropriate
Erwin ESSIG; Norma Essig and Kevin manner; hence, telephone company was
Essig, Appellees/Cross-Appellants. privileged to forbid certain nubeqntractots from
performing work under the splicing contract and,
No. 83-1616 accordingly, did not thereby tortiously interfere
| with contractual relationships.
May 16, 1985. 30 Cases that cite this headnote
Synopsis
Subcontractors brought action against telephone corporation
for alleged tortious interference with contractual relationship.
The Circuit Court, Marion County, William T. Swigert, Attorneys and Law Firms
Ti, dendteneel usea=. spain ie ie orehone *544 Julian Clarkson and Michael L. Rosen, of Holland
oe appealed, wath subcontantory cnsrappedling. The & Knight, Tallahassee, Stephen W. Johnson and Stanley E.
District Court of Appeal, Dariksch, diy ede tha “eae Marable, of McLin, Burnsed, Marable & Morrison, P.A.,
splicing contract expressly permitted telephone company to
request that general contractor remove from the job any
Leesburg, for appellant/cross-appellee.
employees of the contractor or its subcontractors who were — Ray Gill and Robert S, Ryder, Ocala, for appellees/cross-
not doing an adequate
job or who were conducting themselves appellants.
inappropriately; hence, telephone company was privileged to
forbid general contractor from using certain subcontractorson § Opinion
the jobs and, accordingly, it did not thereby tortiously interfere
with contractual relationships. DAUKSCH, Judge.
This is an appeal and cross-appeal from a judgment for
Reversed and remanded. the plaintiffs in an action for tortious interference with a
contractual relationship. Because we conclude the lower court
erred in failing to direct a verdict in favor ofappellant Florida
West Headnotes (2) Telephone Corporation, we do not address the other points
raised on appeal, or in the cross-appeal.
1} = Torts = Contracts Florida Telephone Corporation (FTC) hired H.L. Edwards
Bia Givicntsmot, couscmn egyetiol fel pura ioUs) Corporation (Edwards), as general contractor, to splice
telephone cable. As was its custom, and the custom in the
industry, Edwards subcontracted the cable splicing jobs to
various independent cable splicers. Appellees Essig are such
oF Uke tot elS. “Orem asenay wr -aIyT| independent splicers who subcontracted with Edwards to
ustlitiention arp edit datacom aires work on FTC jobs.
WeSTLAw mso la | ri rl
Florida Telephone Corp. v. Essig, 468 So.2d 543 (1985)
10 Fla. L. Weekly 1216
1] UE ee an adequate job or is conducting himself in a manner as to
see
° reflect unfavorably
Contractor agrees toupon the with
comply Telephone Company, and the
such requests.
The parties do not contest the validity of this contractual
CUYS ie ae
NEN Ua
Conio | provision. Although the Essigs alleged appellant was
motivated by a malicious intent, there was no real evidence
CHa of that and even if there was, it is of no legal import. Etiy/
. : . eA Corporation v. Balter, 386 So.2d 1220 (Fla. 3d DCA 1980),
be seoeliss
sisi hissy go onceaed ide
#545 452rev.U.S.den.,955,392101 So.2d 1371 69(Fla.1981),
S.Ct. 3099, L.Ed.2d 965cert.(1981);
den.,
EEC aa Wackenhut Corperation v. Maimone, 389 So.2d 656 (Fla. 4th
DCA 1980),
pet. for rev. den., 411 So.2d 383 (Fla.1981). The
i JHA ES FES Racergeuea ec fact that FTC may have acted because one of the Essigs' sons
was convictedoftheft, or because Erwin Essig took insulators
le: Sb DCA Teas MMelengid
yf fe eee) «= from abandoned telephone poles twenty years ago, or simply
Pei ee MeSoC eset because FTC's employees disliked the Essigs, is irrelevant.
Fla 9805, Heaivenmae, Opieia Servloge-é, RG Ba. Reobyg FTC expressly reserved the right to remove the Essigs, or
419 Sead [074 (Fle Sh DCA. O82} deswignesMcem! any cable splicer, from FTC jobs; it was therefore privileged
Rie Moe Re Re eee eR gigew * to interfere with their relationship with the H.L, Edwards
Echo ecm: ea ee ase n , Corporation, regardless of motive,
Cavan, 468 Std, 1126SE 98s) (aments of eguse Gf yy {he final judgment of the lower court is reversed, and the case
ached HP COMO’ igierftease with Pec is remanded. On remand, the trial court is instructed to enter
[ne the. Wetnt case, ATC was polvileged
ae Fuki items final judgment in favor of appellant/cross-appellee, Florida
irony wong
theEscigs on PIC jebe. Weoieeecco yeesitgy Telephone Corporation,
i2| In the contract between FTC and Edwards there was a REVERSED and REMANDED.
provision:
(f) The Telephone Company reserves the right to request 9 PRANK D. UPCHURCH, Jr. and SHARP, JJ., concur.
the Contractor to promptly remnave from the job any All Citations
employee(s) of the Contractor or its sub-contractors who,
in the sole opinion of the Telephone Company, isnot doing —_468 So.2d 543, 10 Fla. L. Weekly 1216
End of Document © 2024 Thomson Reuters. No claim to original U.S.
Government Works.
WESTLAW
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|
a
i
|
I
FH
Smith v. Ocean State Bank, 335 So.2d 641 (1976)
{3] Torts *= Business relations or economic
335 So.2d 641
= KG ; : it advantage, in general
District Court of Appeal of Florida, First District. ; ,
Necessary elements of “tortious interference
Tony SMITH, Appellant, with business relationship are: existence
Seas We AS Taos :
of business relationship, not necessarily
v. evidenced by enforceable contract; knowledge
The OCEAN STATE BANK, Appellee. of relationship on part of defendant-interferer;
intentional and unjustified interference with
No. Z—154 such relationship by defendant; and damage to
| plaintiff as result of breach of relationship.
Aug. 3, 1976.
63 Cases that cite this headnote
Synopsis
Payee brought suit against maker ofnote, and maker brought
counterclaim alleging tortious interference with business
14] Tarte
cs
Ge Husioese teldtions ot eonasimit
: z =e advantage, in general
relationship. The Circuit Court, Duval County, John S. Cox, ; ; 7 :
ae ee ; Complaint stating that complainant had obtained
J., dismissed counterclaim and rendered summary judgment : .
f : ne loan from bank on basis of personal note, that
or payee, and maker appealed. The District Court
ofAppeal, tai 4 ae af l ;
McCord, J., held that counterclaim stated cause of action
and was improperly dismissed, and that rendition of final
ae naehas fake ae a aoa
BWer, MIUPHIOe 10 CaS cate note eget
: a od ; of bank contacted agent of silver seller and
judgment was thus premature, . : :
advised agent that complainant had no right to
Riavareed and remanded’ use proceeds of loan to purchase silver, that such
statement was untrue, that as result of bank's
malicious, wanton and unlawful interference
with business relationship seller refused to sell
West Headnotes (4) silver, and that complainant sustained losses and
damages thereby, was sufficient to state cause
e ; ; of action for “tortious interference with business
[i] forts *= Business relations or economic F at nay
relationship.
advantage, in general
Torts += Contracts 10 Cases that cite this headnote
“Tortus injerfereace with comwaec* andy]
“hart us IER nRee INI Diminees ashore ]
ane kasha lly sumecetisteel aetiion, cntty Anti fl
difference being tac in me there cylind Attorneys and Law Firms
fo exter titecatis pails tyuettnrags ncievinodhi
,W *642 Thomas A. Larkin, Jacksonville, for appellant.
46 Cases that cite this headnote
James E. Hodge of Foerster & Hodge, Jacksonville, for
appellee.
[2] Torts = Business relations or economic
advantage, in general Opinion
Fraud is not an element of action for tortious
ee eee ee McCORD, Judge.
interference with business relationship.
. P ; The trial court dismissed appellant's second amended
43 Cases that cite this headnote ; :
counterclaim and entered summary judgment for appellee
on appellee's suit against appellant upon a note. Appellee
contends the trial court erred in dismissing the second
WESTLAW | 7] Ory lo clain ' nal U nment WV |
Smith v. Ocean State Bank, 335 So.2d 641 (1976)
amended counterclaim in that it stated a cause of action
for intentional and unjustified interference with a business In 45 Am.Jur.2d Interference, s 39, we find the following with
relationship. Appellee contends that the counterclaim is reference to tortious interference with contractual rights:
cast as a suit for tortious interference with contract rights. “A party to a contract, whether of employment or otherwise,
Since it did not appear to this court that the trial court has a right of action against a person who had procured
considered the contentions here made by appellant, we @ breach or termination of the contract by the other party
temporarily relinquished jurisdiction to the trial court for ‘hereto. The theory of this doctrine is that the right to
such consideration and further order. The order has now been _—«~Perform a contract and to reap the profits resulting from such
entered and it states that the trial court fully considered both Petformance, and also the right to performance by the other
contentions of appellant and found that the second amended _—P"ty, are property rights which entitle each party to protection
counterclaim did not state a cause ofaction under either theory against all the world, and to seek compensation by action in
stating, tort for any injuries to such contract. The interest protected
‘This court considers ‘intentional and unjustified’ has been said to be the right of the individual to security
interference with a business relationship to be one and the in his business relations, that is, the right to have preserved
same as ‘tortious' interference with a business relationship, the undertaking of persons with whom he has commercial
This court also considers tortious interference with contract 4ealings.
rights to be included within the definition of ‘tortious
interference with a business relationship.“ *643 The elements essential to recovery for tortious
interference with a contract are: (1) the contract; (2)
the wrongdoer's knowledge thereof; (3) his intentional
The second amended counterclaim alleges in substance that —_ procurement of its breach; (4) the absenceofjustification; and
on August 21, 1974, Tony Smith (appellant) borrowed (5) damages resulting therefrom.'
$16,293.43 from The Ocean State Bank (appellee) and
gave the bank a personal note therefor; that Smith used | Under s 50 of the same heading relating to interference with
the proceeds from the loan to purchase silver through the —_business relationship we find the following:
American Coin Exchange which purchase inno way involved MULES teisteh nicer lich pasta sles pa yi Epa ENS SHRERY
the bank; that prior to the due date of the note, the vice- QMWrey eye ma TMM Drs id oulationtshh ip wine Te ex ionenreg,
president of the bank contacted an agent of the American @@s@ameeucl business lation (not necessarily evidenced by ~
Coin Exchange by telephone on two occasions and each [REiBoione emcee icon umnic maim!
time advised the agent ‘that Mr. Tony Smith had no right [RGEGSIE Mingo celular apnea MmGer
Le ene
to use the proceeds of the loan which the bank had made @iBiiiecuidernteal interfesenos inducing. or causing,
2 breach (ig
to Mr. Smith for the purchase of silver and that The Ocean (Reunite CALC itens Hit Ramen ncce
mc aug
cc Mt ti
State Bank was entitled to any proceeds resulting from said @iiguvaeomram Hour tLig heseicitiskip
ar expatiingy ine I
purchase’ which statement was untrue; that as a result of @BScenkunigya ed?One is liable for commission ofthis tort who
the bank's malicious, wanton and unlawful interference with interferes with business relations of another, both existing and
the contractual relationship between Smith and the American —_ prospective, by including a third person not to enter into or
Coin Exchange, said relationship was disrupted and destroyed —_ continue a business relation with another or by preventing a
and the Exchange refused to sell the silver and give him the _ third person from continuing a business relation with another.’
proceeds without the approval of the bank ‘and all assets were
thereupon frozen’; that as a result of the actions of the bank, In Franklin v, Brown, 159 So.2d 893 (Fla. lst DCA 1964), this
Smith sustained certain losses and damages which were set court said:
forth in the second amended counterclaim. ‘The intentional and unjustified interference with the
advantageous business relationship existing between others
[1] As the trial judge pointed out, tortious interference witha hich results in injury constitutes a tort under the law of this
contract and tortious interference with a business relationship — gate __
are basically the same cause of action. The only material
difference appears to be that in one there is a contract and in ‘Even though appellant asserts no cause of action against
the other there is only a business relationship. Welton Smith for breach of contract, this in itself does not
bar appellant from asserting a cause of action against appellee
if the latter's conduct constitutes a tortious interference with
WESTLAW homson lo cl ’
Smith v. Ocean State Bank, 335 So.2d 641 (1976)
appellant's business relationship with Welton Smith. If by 4 then a oe on fraud is not required.’ (Numerous
his wanton conduct appellee intentionally destroyed the eeaonnee uted)
subject matter of the contract existing between appellant and : :
Welton Smith, or otherwise unlawfully rendered the latter's Subsecnicatly, rhe es 2a oo before the =
performance under the contract impossible, appellee would (Symon v. J. Rolfe Davis, Inc., 245 So.2d 278 (Fla.4th DCA
be liable in tort to the same extent as if he had unlawfully
g
71)) and it stated the elements ofthe tort as follows:
Z A rede
induced Welton Smith to breach its contract with appellant.’ The elements af the tort, then, are (1) the Sxuatene of
a business relationship under which the plaintiff has legal
In Dade Enterprises v. Wometco Theatres, 119 Fla. 70, 160 rights, (2) an intentional and unjustified interference with that
So. 209 (1935), the Supreme Court said: relationship by the defendant, and (3) damage to the plaintiff
If one disliciodsly injerferes with’ coniract beaween two. a result
of the breach ofthe business relationship. Cf., John
persons, and induces one ofthem to breach the contract to the B. Reid & Associates, Inc. v. Jimenez, Fla.App.1965, 181
injury of the other, the injured party may maintain7 an action So.2d 575; Mead Corporation v. Mason, Fla.App.!966, 191
against the wrongdoer, and where the act was intentional,
: :
So.2d 592,
2d 592,”
malice will be inferred. To do intentionally that which is ‘ : ,
calculated in the ordinary course of events to damage, and The foregoing statement of the elements of this tort were
which in fact does damage, another person in his property or quoted in Nichols v. MoAmCo Corp., 311 So.2d 750 (Fla.2d
trade, is malicious in the law, and is actionable if it is done DCA 1975).
> O75
without just cause or excuse, (3) MEAs riot terra ninety Mhndesith ag
shosba sine tome aeleMembre
ele Moin Ortacacucieeeey
Sos as ' Ee See Lame | aie| ecnatinyere — te Py
[2] Ouropinion
Court's sister incourtFranklin
of the v.Third District,
Brown, supra,in concluded
analyzing this
in pee:vatsES
"Qu iainees vee ia aha
ieee nenesnatily ‘i
eyibencel ea
John B. Reid and Associates, Inc. v. Jimenez, 181 So.2d 575 exlioress er aaa ae ecient ge- oF das seluliomsiiy a
(Fla.3d DCA 1965), that the elements necessary to establish ‘Ove putt ¢ is holeafereay (3) aty Business relations or economic
there is a wrongful taking of the property of advantage, in general
another: A cause of action for tortious interference with
10 ‘Cases that cite this headnoie an advantageous business relationship requires
the following four elements: (1) the existence
WESTLAW 124) Thomsar ul Me claim to original U farnment We
Abele v. Sawyer, 750 So.2d 70 (1999)
24 Fla. L. Weekly 02396
of a business relationship under which the complaint attacheda dollar amount to the alleged
plaintiff has legal rights, (2) knowledge of the harm that would result from transfer of assets,
relationship by the defendant, (3) an intentional and claims against defendants would result in
and unjustified interference with the relationship damage award ifproven.
by the defendant, and (4) damages to the plaintiff
as a result of the breach of the relationship. 2 Cases that cite this headnote
6 Cases that cite this headnote
[7] Torts “= Business relations or economic Attorneys and Law Firms
advantage, inigenetal *72 Humberto H. Ocariz, Joseph A. DeMaria, and John M.
Non-controlling shareholders of _—_ land Quaranta of Tew Cardenas Rebak Kellogg Lehman DeMaria
development corporation stated actionable & Tague, L.L.P., for appellants.
claim against purchasers of land for
tortious interference with advantageous Linda A. Conahan and Ann M. Burke ofEnglish, McCaughan
business relationship consisting of shareholders & O'Bryan, P.A., Fort Lauderdale, for Appellees Marvin
agreement between controlling shareholder and Danto, James Danto and Broward International Commerce
non-controlling shareholders; non-controlling Park, L.P.
shareholder allegedly notified purchasers that
controlling shareholder had no authority to Mimi L. Sall and Bradford Swing of Stearns Weaver Miller
convey property without express consent of Weissler Alhadeff & Sitterson, P.A., Fort Lauderdale, co-
other shareholders, controlling shareholder counsel, for Appellee Broward International Commerce Park,
and purchasers allegedly met in secret to LP.
Bell yruipenty, ini xam-cnatpolling, ciareholders Joseph S. Geller and Peggy Fisher of Geller, Geller &
alleged that they were damaged. Garfinkel, Hollywood, for Appellees Delores Sawyer, David
Sawyer and Quality Concrete & Rental, Inc.
[8] Torts ©» Defense, justification or privilege in Opinion
general is
TESCO
AP AD wens ad menace Mh Ej WARNER, C.J.
oninien igpeesiy a aint
s aU Tenses, This is an appeal from a final order dismissing
ethan. appellants' (“the Abele Group”) complaint for constructive
’ oon trust and tortious interference against the appellees, Dantos,
13 Cases that cite this headnote a. ; : .
and for injunctive relief against all of the appellees. The
underlying transaction for which relief was sought involved
[9] Torts “© Injury and causation a failed land and construction transaction. We affirm the trial
Claimof intentional interference with a contract court's dismissal of the constructive trust count against the
is sufficiently independent to withstand bar of Dantos because they did not hold the property on which
economic loss rule. the constructive trust was sought. However, we reverse
the dismissal of the count for tortious interference, as the
2 Cases that cite this headnote complaint sufficiently alleged all elements of that cause of
action. In regards to the injunction, we affirm.
{10] Injunction *= Acquisition and disposition of
property; mortgages and security agreements
Non-controlling shareholders of — ‘and I. Allegations of the Complaint.
development corporation were not entitled to ; . : :
injunction, aginst lated purchaser preventing The detailed allegations ofthe complaint ims attachisncaity
disposition of any. of corparation’s. ‘assets; explain the factual background surrounding this case.
Abele v. Sawyer, 750 So.2d 70 (1999)
24 Fla. L. Weekly D2396
Charles Abele originally entered into a contract with Village to provide $1,250,000 in additional capital to assist in the
Development to purchase approximately 25 acres of vacant | completion of the project, to be credited against a purchase
land for the purpose of constructing and developing a price of $21 million. After BICC approved the Dantos as
commercial center which he intended to sell. The acreage —_purchasers, Charles Abele and David Sawyer, as developers,
was divided into several parcels which Abele could purchase signed a purchase contract with the Dantos, but the contract
individually at certain set intervals. For this purpose, provided that the Dantos were contracting “not individually
he formed a corporation called Broward International but on behalf of an entity to be formed and without personal
Commerce Center (“BICC”). Needing additional financing, _ liability.” The purchase agreement permitted the Dantos
he brought the Sawyers and the Ralphs into the transaction, to assume development of the property and acquire the
Several agreements were entered into by the various parties. remaining land from Village Development if BICC were in
Holly Abele and Delores Sawyer executed an irrevocable — default of its obligations. The Dantos subsequently assigned
voting trust. Charles Abele and Delores Sawyer signed an their rights under the purchase agreement to Commerce
organizational statement as BICC directors and all of the Park, a limited partnership whose general partner was Danto
parties entered into a Shareholder's Agreement. As a result Investment Company, which was wholly owned by the
of all of these documents, Delores Sawyer became BICC's _—_— Dantos. The complaint alleges that Village Development has
president, secretary, treasurer, and director. Charles Abele — not declared BICC in default of any of its obligations, as of
was the named vice-president and director of the company. the date of the amended complaint.
Delores also owned 50%
Preview
Filing # 196999323 E-Filed 04/25/2024 01:45:50 PM IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR INDIAN RIVER COUNTY, FLORIDA CASE NO.: 31-2023-CA-000899 MICHAEL MERRILL, an individual, Plaintiff, Vs. ROBERT GIBB, an individual, and JOHN’S ISLAND REAL ESTATE CO., a Florida profit corporation, Defendants. ees ae eee ee INDEX TO KEY LEGAL AUTHORITIES SUPPORTING THE DEFENDANTS’ JOINT MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT L. Plaintiffs Tortious Interference Claims (Counts I and II) l: Fla. Tel. Corp. v. Essig, 468 So. 2d 543 (Fla. Sth DCA 1985) (The elements of a cause of action for tortious interference with a contractual relationship are: (1) The existence of a contract, (2) The defendant's knowledge of the contract, (3) The defendant's intentional procurement of the contract's breach, (4) Absence of any justification or privilege, [and] (5) Damages resulting from the breach.) 2; Smith y, Ocean State Bank, 335 So. 2d 641 (Fla. 1st DCA 1976) (The elements of a claim for tortious interference with a business relationship and tortious interference with a contract are the same, with the only difference being that “in one there is a contract and in the other there is only a business relationship.”) 3. Abele v. Sawyer, 750 So. 2d 70 (Fla. 4th DCA 1999) (Justification or privilege to interfere with a contract is a defense to a tortious interference action; Where an affirmative defense appears on the face of the complaint, it may be raised in a motion to dismiss.) 4, Int'l Expositions, Inc. v. City ofMiami Beach, 274 So. 2d 29 (Fla. 3d DCA 1973) (Florida law recognizes competition between competitors, and if there is an interference with a non-exclusive right this is a privileged interference.) 1 5. Weisman vy. S. Wine & Spirits ofAm., Inc., 297 So. 3d 646 (Fla. 4th DCA 2020) (The competition privilege is a defense to a tortious interference claim which is generally applied where two companies compete over a contract or business. The protection privilege, the privilege to interfere to protect one's own financial and contractual interests, is a defense to a claim of tortious interference requiring the defendant to only show that improper means were not employed to protect its own financial and contractual interests.) 6. Reed v. Quatkemeyer, 647 So. 2d 172 (Fla. 2d DCA 1994) (The Supreme Court of Florida has held where no property interest is involved, the courts will not interfere with the decisions of fraternal organizations with regard to its grievances absent fraud or bad faith.) 7. Pentecostal Holiness Church, Inc. v. Mauney, 270 So. 2d 762 (Fla. 4th DCA 1972) (A motion to strike matter as redundant, immaterial or scandalous should be granted if material is wholly irrelevant, can have no bearing on equities, and no influence on decision.) 8. Morse vy. Ripken, 707 So. 2d 921 (Fla. 4th DCA 1998) (holding that statements of pure opinion are not actionable under the First Amendment: “However pernicious an opinion may seem, we depend for its correction not on the conscience ofjudges and juries, but on the competition of other ideas.”’) 9. Dade Enterprises v. Wometco Theatres, 160 So. 209 (Fla. 1935) The Florida Supreme Court has long held that no liability for tortious interference exists unless the plaintiff can establish that the defendant wrongfully induced another party to breach a contract or sever a business relationship.) 10. | Camp Creek Hosp. Inns, Inc. v. Sheraton Franchise Corp., 139 F.3d 1396 (11th Cir. 1998) (“[Plaintiff] has presented no evidence to distinguish between persons who chose not to stay at [Plaintiff's business] as a result of [Defendants’] bad acts and those who simply rejected [Plaintiff] because [Defendants] presented a more attractive or simply an additional choice. [Plaintiffs] failure to identify a causal connection between [Defendants’] tortious activity and the interruption of any particular business relationship requires us to affirm the district court’s grant of summary judgment.”) 11. St. Johns River Water Mgmt. Dist. v. Fernberg Geological Services, Inc., 784 So. 2d 500 (Fla. 5th DCA 2001) (As with most other torts, embedded within the essential elements of the tort of intentional interference with a business relationship is the legal requirement that the plaintiff prove causation.) 2 12. Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113 (Fla. 1988) (Both civil and criminal court proceedings are public events and there is strong presumption of public access to these proceedings and their records, subject to narrowly defined exceptions.) II. Plaintiff's Civil Conspiracy Claims (Counts III and IV) 13. Mancinelli v. Davis, 217 So. 3d 1034 (Fla. 4th DCA 2017) (As a general proposition, the intra-corporate conspiracy doctrine, under which neither an agent nor an employee can conspire with his or her corporate principal or employer, precludes the claim of conspiracy against individuals and their corporation for wholly internal agreements to commit wrongful or actionable conduct.) 14. Alhassid v. Bank ofAm., N.A., 60 F. Supp. 3d 1302 (S.D. Fla. 2014) (Florida does not recognize an independent cause of action for civil conspiracy; rather, a plaintiff must allege an underlying illegal act or tort on which conspiracy is based.) 15. Raimi v. Furlong, 702 So. 2d 1273 (Fla. 3d DCA 1997) (Actionable civil conspiracy requires actionable underlying tort or wrong.) Ill. = Plaintiff?s RICO Claims (Counts V and VI) 16. Palmas ¥ Bambu, S.A. v. EI. Dupont De Nemours & Co., Inc., 881 So. 2d 565 (Fla. 3d DCA 2004) (Indirect injuries, that is injuries sustained not as a direct result of predicate acts, will not allow recovery under Florida Racketeer Influenced and Corrupt Organizations Act (RICO).) 17. Davis v. Bay Cnty. Jail, 155 So. 3d 1173 (Fla. Ist DCA 2014) (Threadbare recitals of the elements of a cause of action are legally insufficient to satisfy the ultimate fact pleading requirements under the Florida Rules of Civil Procedure.) 18. Compagnie De Reassurance D'lle de France v. New England Reinsurance Corp., 57 F.3d 56 (1st Cir. 1995), as amended on denial of reh'g (July 12, 1995) (Plaintiff has failed to allege ultimate facts to establish that Plaintiff suffered an injury proximately caused by Defendants’ “investment” in the purported racketeering enterprise.) 19. Am. Dental Ass’n. v. Cigna Corp., 605 F. 3d 1283, 1293-95 (11th Cir. 2010) (Two or more persons reaching an agreement to commit a RICO offense is an essential element of a RICO conspiracy claim.) 20. Doyle v. Hasbro, Inc., 103 F.3d 186 (1st Cir. 1996) (Under Racketeer Influenced and Corrupt Organizations Act (RICO) § 1962(c) claim, unlawful enterprise itself cannot also be the person plaintiff charges with conducting it; in order to succeed, 3 complaint must allege the existence of a person distinct from the existence of an enterprise.) 21. Oglesbee v. IndyMac Fin. Services, Inc., 686 F. Supp. 2d 1313 (S.D. Fla. 2010) (Since incidents of criminal activity alleged by mortgagor, besides allegations of perjury, arose out of the same mortgage loan transaction, they did not qualify as a “pattern of criminal activity” under Florida Racketeer Influenced and Corrupt Organizations Act (RICO) statute.) IV. Plaintiff’s Antitrust Claims (Counts VII and VIII) 22. ~—-Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (An allegation of parallel business conduct and a bare assertion of conspiracy will not suffice to state a claim under Sherman Act's restraint of trade provision; without more, parallel conduct does not suggest conspiracy, and a conclusory allegation of agreement at some unidentified point does not supply facts adequate to show illegality.) 23. Walker Process Equip., Inc. v. Food Mach. & Chem. Corp., 382 U.S. 172 (1965) (To establish monopolization or attempt to monopolize a part of trade or commerce under Sherman Act by maintenance and enforcement of patent obtained by fraud on patent office, it would be necessary to appraise the exclusionary power of the illegal patent claim in terms of the relevant market for the product involved.) 24. Okeelanta Power Lid. P'ship v. Florida Power & Light Co., 766 So. 2d 264 (Fla. 4th DCA 2000) (Mere allegations that a party has violated the antitrust laws are insufficient to survive a motion to dismiss; the party must plead sufficient facts to establish each element and cannot use terms which are conclusory. Plaintiff has failed to define both the relevant geographic market and the product or service at issue.) 25. Jacobs v. Tempur-Pedic Intern., Inc., 626 F.3d 1327 (11th Cir. 2010) (affirming dismissal of antitrust complaint for failing to define relevant market.) 26. U.S. Anchor Mfg., Inc. v. Rule Indus., Inc., 7 F.3d 986 (11th Cir. 1993), certified question answered, 264 Ga. 295, 443 S.E.2d 833 (1994) (Three essential elements of claim alleging attempted monopolization are: plaintiff must show that defendant possessed specific intent to achieve monopoly power by predatory or exclusionary conduct; defendant must in fact commit such anticompetitive conduct; and there must have existed a dangerous probability that defendant might have succeeded in its attempt to achieve monopoly power.) 27. Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477 (1977) (Plaintiffs must prove “antitrust injury, which is to say injury of the type the antitrust laws were intended to prevent.”) 4 DATED this 24th day, of April 2024. /s/ Dylan J. Hooper JOHN A. BOUDET, ESQUIRE Florida Bar No. 515670 john.boudet@gray-robinson.com clara.torres@gray-robinson.com DYLAN J. HOOPER, ESQUIRE Florida Bar No.: 1018147 Primary E-mail Address: Dylan.hooper@gray-robinson.com GRAY | ROBINSON, P.A. 301 East Pine Street, Suite 1400 Orlando, Florida 32801 Telephone: 407.843.8880 Facsimile: 407.244.5690 Counselfor Defendant John’s Island Real Estate Co. /s/_ Elisa C. Mills Lewis W. Murphy Jr. Florida Bar No, 09467 Elisa C.Mills Florida Bar No, 110763 MURPHY & WALKER, P.L. Counselfor Defendant Robert Gibb 2001 U.S. Highway | Vero Beach, Florida 32960 E-Mails: wmurphy@murphywalker.com emills@murphywalker.com pleadings-murphy@murphywalker.com Telephone: (772)231-1900 Facsimile: (772)23 1-4387 5 CERTIFICATE OF SERVICE I] HEREBY CERTIFY that on this 24th day of April 2024, I electronically filed the foregoing with the Clerk of the Court via the Florida Courts’ e-Filing Portal, pursuant to and in compliance with Rule 2.516, Florida Rules ofJudicial Administration, which will complete service by furnishing a true and correct copy of the foregoing via electronic mail to all counsel of record. /s/ Dylan J. Hooper Dylan J. Hooper 6 Florida Telephone Corp. v. Essig, 468 So.2d 543 (1985) 10 Fla. L. Weekly 1216 56 Cases that cite this headnote re KeyCite Yellow Flag - Negative Treatment Distinguished by Sobi v, Fairfield Resorts, Inc., Fla.App. 5 Dist., June 6, 2003 : 468 So.2d 543 \2] Torts *~ Contracts in general District Court of Appeal of Florida, Fifth District. Telephone cable splicing contract expressly permitted telephone company to request that FLORIDA TELEPHONE CORPORATION, general contractor remove from the job any Appellant/Cross-Appellee, employees of the contractor or its subcontractors who were not doing an adequate job or V. were conducting themselves in inappropriate Erwin ESSIG; Norma Essig and Kevin manner; hence, telephone company was Essig, Appellees/Cross-Appellants. privileged to forbid certain nubeqntractots from performing work under the splicing contract and, No. 83-1616 accordingly, did not thereby tortiously interfere | with contractual relationships. May 16, 1985. 30 Cases that cite this headnote Synopsis Subcontractors brought action against telephone corporation for alleged tortious interference with contractual relationship. The Circuit Court, Marion County, William T. Swigert, Attorneys and Law Firms Ti, dendteneel usea=. spain ie ie orehone *544 Julian Clarkson and Michael L. Rosen, of Holland oe appealed, wath subcontantory cnsrappedling. The & Knight, Tallahassee, Stephen W. Johnson and Stanley E. District Court of Appeal, Dariksch, diy ede tha “eae Marable, of McLin, Burnsed, Marable & Morrison, P.A., splicing contract expressly permitted telephone company to request that general contractor remove from the job any Leesburg, for appellant/cross-appellee. employees of the contractor or its subcontractors who were — Ray Gill and Robert S, Ryder, Ocala, for appellees/cross- not doing an adequate job or who were conducting themselves appellants. inappropriately; hence, telephone company was privileged to forbid general contractor from using certain subcontractorson § Opinion the jobs and, accordingly, it did not thereby tortiously interfere with contractual relationships. DAUKSCH, Judge. This is an appeal and cross-appeal from a judgment for Reversed and remanded. the plaintiffs in an action for tortious interference with a contractual relationship. Because we conclude the lower court erred in failing to direct a verdict in favor ofappellant Florida West Headnotes (2) Telephone Corporation, we do not address the other points raised on appeal, or in the cross-appeal. 1} = Torts = Contracts Florida Telephone Corporation (FTC) hired H.L. Edwards Bia Givicntsmot, couscmn egyetiol fel pura ioUs) Corporation (Edwards), as general contractor, to splice telephone cable. As was its custom, and the custom in the industry, Edwards subcontracted the cable splicing jobs to various independent cable splicers. Appellees Essig are such oF Uke tot elS. “Orem asenay wr -aIyT| independent splicers who subcontracted with Edwards to ustlitiention arp edit datacom aires work on FTC jobs. WeSTLAw mso la | ri rl Florida Telephone Corp. v. Essig, 468 So.2d 543 (1985) 10 Fla. L. Weekly 1216 1] UE ee an adequate job or is conducting himself in a manner as to see ° reflect unfavorably Contractor agrees toupon the with comply Telephone Company, and the such requests. The parties do not contest the validity of this contractual CUYS ie ae NEN Ua Conio | provision. Although the Essigs alleged appellant was motivated by a malicious intent, there was no real evidence CHa of that and even if there was, it is of no legal import. Etiy/ . : . eA Corporation v. Balter, 386 So.2d 1220 (Fla. 3d DCA 1980), be seoeliss sisi hissy go onceaed ide #545 452rev.U.S.den.,955,392101 So.2d 1371 69(Fla.1981), S.Ct. 3099, L.Ed.2d 965cert.(1981); den., EEC aa Wackenhut Corperation v. Maimone, 389 So.2d 656 (Fla. 4th DCA 1980), pet. for rev. den., 411 So.2d 383 (Fla.1981). The i JHA ES FES Racergeuea ec fact that FTC may have acted because one of the Essigs' sons was convictedoftheft, or because Erwin Essig took insulators le: Sb DCA Teas MMelengid yf fe eee) «= from abandoned telephone poles twenty years ago, or simply Pei ee MeSoC eset because FTC's employees disliked the Essigs, is irrelevant. Fla 9805, Heaivenmae, Opieia Servloge-é, RG Ba. Reobyg FTC expressly reserved the right to remove the Essigs, or 419 Sead [074 (Fle Sh DCA. O82} deswignesMcem! any cable splicer, from FTC jobs; it was therefore privileged Rie Moe Re Re eee eR gigew * to interfere with their relationship with the H.L, Edwards Echo ecm: ea ee ase n , Corporation, regardless of motive, Cavan, 468 Std, 1126SE 98s) (aments of eguse Gf yy {he final judgment of the lower court is reversed, and the case ached HP COMO’ igierftease with Pec is remanded. On remand, the trial court is instructed to enter [ne the. Wetnt case, ATC was polvileged ae Fuki items final judgment in favor of appellant/cross-appellee, Florida irony wong theEscigs on PIC jebe. Weoieeecco yeesitgy Telephone Corporation, i2| In the contract between FTC and Edwards there was a REVERSED and REMANDED. provision: (f) The Telephone Company reserves the right to request 9 PRANK D. UPCHURCH, Jr. and SHARP, JJ., concur. the Contractor to promptly remnave from the job any All Citations employee(s) of the Contractor or its sub-contractors who, in the sole opinion of the Telephone Company, isnot doing —_468 So.2d 543, 10 Fla. L. Weekly 1216 End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW ' | a i | I FH Smith v. Ocean State Bank, 335 So.2d 641 (1976) {3] Torts *= Business relations or economic 335 So.2d 641 = KG ; : it advantage, in general District Court of Appeal of Florida, First District. ; , Necessary elements of “tortious interference Tony SMITH, Appellant, with business relationship are: existence Seas We AS Taos : of business relationship, not necessarily v. evidenced by enforceable contract; knowledge The OCEAN STATE BANK, Appellee. of relationship on part of defendant-interferer; intentional and unjustified interference with No. Z—154 such relationship by defendant; and damage to | plaintiff as result of breach of relationship. Aug. 3, 1976. 63 Cases that cite this headnote Synopsis Payee brought suit against maker ofnote, and maker brought counterclaim alleging tortious interference with business 14] Tarte cs Ge Husioese teldtions ot eonasimit : z =e advantage, in general relationship. The Circuit Court, Duval County, John S. Cox, ; ; 7 : ae ee ; Complaint stating that complainant had obtained J., dismissed counterclaim and rendered summary judgment : . f : ne loan from bank on basis of personal note, that or payee, and maker appealed. The District Court ofAppeal, tai 4 ae af l ; McCord, J., held that counterclaim stated cause of action and was improperly dismissed, and that rendition of final ae naehas fake ae a aoa BWer, MIUPHIOe 10 CaS cate note eget : a od ; of bank contacted agent of silver seller and judgment was thus premature, . : : advised agent that complainant had no right to Riavareed and remanded’ use proceeds of loan to purchase silver, that such statement was untrue, that as result of bank's malicious, wanton and unlawful interference with business relationship seller refused to sell West Headnotes (4) silver, and that complainant sustained losses and damages thereby, was sufficient to state cause e ; ; of action for “tortious interference with business [i] forts *= Business relations or economic F at nay relationship. advantage, in general Torts += Contracts 10 Cases that cite this headnote “Tortus injerfereace with comwaec* andy] “hart us IER nRee INI Diminees ashore ] ane kasha lly sumecetisteel aetiion, cntty Anti fl difference being tac in me there cylind Attorneys and Law Firms fo exter titecatis pails tyuettnrags ncievinodhi ,W *642 Thomas A. Larkin, Jacksonville, for appellant. 46 Cases that cite this headnote James E. Hodge of Foerster & Hodge, Jacksonville, for appellee. [2] Torts = Business relations or economic advantage, in general Opinion Fraud is not an element of action for tortious ee eee ee McCORD, Judge. interference with business relationship. . P ; The trial court dismissed appellant's second amended 43 Cases that cite this headnote ; : counterclaim and entered summary judgment for appellee on appellee's suit against appellant upon a note. Appellee contends the trial court erred in dismissing the second WESTLAW | 7] Ory lo clain ' nal U nment WV | Smith v. Ocean State Bank, 335 So.2d 641 (1976) amended counterclaim in that it stated a cause of action for intentional and unjustified interference with a business In 45 Am.Jur.2d Interference, s 39, we find the following with relationship. Appellee contends that the counterclaim is reference to tortious interference with contractual rights: cast as a suit for tortious interference with contract rights. “A party to a contract, whether of employment or otherwise, Since it did not appear to this court that the trial court has a right of action against a person who had procured considered the contentions here made by appellant, we @ breach or termination of the contract by the other party temporarily relinquished jurisdiction to the trial court for ‘hereto. The theory of this doctrine is that the right to such consideration and further order. The order has now been _—«~Perform a contract and to reap the profits resulting from such entered and it states that the trial court fully considered both Petformance, and also the right to performance by the other contentions of appellant and found that the second amended _—P"ty, are property rights which entitle each party to protection counterclaim did not state a cause ofaction under either theory against all the world, and to seek compensation by action in stating, tort for any injuries to such contract. The interest protected ‘This court considers ‘intentional and unjustified’ has been said to be the right of the individual to security interference with a business relationship to be one and the in his business relations, that is, the right to have preserved same as ‘tortious' interference with a business relationship, the undertaking of persons with whom he has commercial This court also considers tortious interference with contract 4ealings. rights to be included within the definition of ‘tortious interference with a business relationship.“ *643 The elements essential to recovery for tortious interference with a contract are: (1) the contract; (2) the wrongdoer's knowledge thereof; (3) his intentional The second amended counterclaim alleges in substance that —_ procurement of its breach; (4) the absenceofjustification; and on August 21, 1974, Tony Smith (appellant) borrowed (5) damages resulting therefrom.' $16,293.43 from The Ocean State Bank (appellee) and gave the bank a personal note therefor; that Smith used | Under s 50 of the same heading relating to interference with the proceeds from the loan to purchase silver through the —_business relationship we find the following: American Coin Exchange which purchase inno way involved MULES teisteh nicer lich pasta sles pa yi Epa ENS SHRERY the bank; that prior to the due date of the note, the vice- QMWrey eye ma TMM Drs id oulationtshh ip wine Te ex ionenreg, president of the bank contacted an agent of the American @@s@ameeucl business lation (not necessarily evidenced by ~ Coin Exchange by telephone on two occasions and each [REiBoione emcee icon umnic maim! time advised the agent ‘that Mr. Tony Smith had no right [RGEGSIE Mingo celular apnea MmGer Le ene to use the proceeds of the loan which the bank had made @iBiiiecuidernteal interfesenos inducing. or causing, 2 breach (ig to Mr. Smith for the purchase of silver and that The Ocean (Reunite CALC itens Hit Ramen ncce mc aug cc Mt ti State Bank was entitled to any proceeds resulting from said @iiguvaeomram Hour tLig heseicitiskip ar expatiingy ine I purchase’ which statement was untrue; that as a result of @BScenkunigya ed?One is liable for commission ofthis tort who the bank's malicious, wanton and unlawful interference with interferes with business relations of another, both existing and the contractual relationship between Smith and the American —_ prospective, by including a third person not to enter into or Coin Exchange, said relationship was disrupted and destroyed —_ continue a business relation with another or by preventing a and the Exchange refused to sell the silver and give him the _ third person from continuing a business relation with another.’ proceeds without the approval of the bank ‘and all assets were thereupon frozen’; that as a result of the actions of the bank, In Franklin v, Brown, 159 So.2d 893 (Fla. lst DCA 1964), this Smith sustained certain losses and damages which were set court said: forth in the second amended counterclaim. ‘The intentional and unjustified interference with the advantageous business relationship existing between others [1] As the trial judge pointed out, tortious interference witha hich results in injury constitutes a tort under the law of this contract and tortious interference with a business relationship — gate __ are basically the same cause of action. The only material difference appears to be that in one there is a contract and in ‘Even though appellant asserts no cause of action against the other there is only a business relationship. Welton Smith for breach of contract, this in itself does not bar appellant from asserting a cause of action against appellee if the latter's conduct constitutes a tortious interference with WESTLAW homson lo cl ’ Smith v. Ocean State Bank, 335 So.2d 641 (1976) appellant's business relationship with Welton Smith. If by 4 then a oe on fraud is not required.’ (Numerous his wanton conduct appellee intentionally destroyed the eeaonnee uted) subject matter of the contract existing between appellant and : : Welton Smith, or otherwise unlawfully rendered the latter's Subsecnicatly, rhe es 2a oo before the = performance under the contract impossible, appellee would (Symon v. J. Rolfe Davis, Inc., 245 So.2d 278 (Fla.4th DCA be liable in tort to the same extent as if he had unlawfully g 71)) and it stated the elements ofthe tort as follows: Z A rede induced Welton Smith to breach its contract with appellant.’ The elements af the tort, then, are (1) the Sxuatene of a business relationship under which the plaintiff has legal In Dade Enterprises v. Wometco Theatres, 119 Fla. 70, 160 rights, (2) an intentional and unjustified interference with that So. 209 (1935), the Supreme Court said: relationship by the defendant, and (3) damage to the plaintiff If one disliciodsly injerferes with’ coniract beaween two. a result of the breach ofthe business relationship. Cf., John persons, and induces one ofthem to breach the contract to the B. Reid & Associates, Inc. v. Jimenez, Fla.App.1965, 181 injury of the other, the injured party may maintain7 an action So.2d 575; Mead Corporation v. Mason, Fla.App.!966, 191 against the wrongdoer, and where the act was intentional, : : So.2d 592, 2d 592,” malice will be inferred. To do intentionally that which is ‘ : , calculated in the ordinary course of events to damage, and The foregoing statement of the elements of this tort were which in fact does damage, another person in his property or quoted in Nichols v. MoAmCo Corp., 311 So.2d 750 (Fla.2d trade, is malicious in the law, and is actionable if it is done DCA 1975). > O75 without just cause or excuse, (3) MEAs riot terra ninety Mhndesith ag shosba sine tome aeleMembre ele Moin Ortacacucieeeey Sos as ' Ee See Lame | aie| ecnatinyere — te Py [2] Ouropinion Court's sister incourtFranklin of the v.Third District, Brown, supra,in concluded analyzing this in pee:vatsES "Qu iainees vee ia aha ieee nenesnatily ‘i eyibencel ea John B. Reid and Associates, Inc. v. Jimenez, 181 So.2d 575 exlioress er aaa ae ecient ge- oF das seluliomsiiy a (Fla.3d DCA 1965), that the elements necessary to establish ‘Ove putt ¢ is holeafereay (3) aty Business relations or economic there is a wrongful taking of the property of advantage, in general another: A cause of action for tortious interference with 10 ‘Cases that cite this headnoie an advantageous business relationship requires the following four elements: (1) the existence WESTLAW 124) Thomsar ul Me claim to original U farnment We Abele v. Sawyer, 750 So.2d 70 (1999) 24 Fla. L. Weekly 02396 of a business relationship under which the complaint attacheda dollar amount to the alleged plaintiff has legal rights, (2) knowledge of the harm that would result from transfer of assets, relationship by the defendant, (3) an intentional and claims against defendants would result in and unjustified interference with the relationship damage award ifproven. by the defendant, and (4) damages to the plaintiff as a result of the breach of the relationship. 2 Cases that cite this headnote 6 Cases that cite this headnote [7] Torts “= Business relations or economic Attorneys and Law Firms advantage, inigenetal *72 Humberto H. Ocariz, Joseph A. DeMaria, and John M. Non-controlling shareholders of _—_ land Quaranta of Tew Cardenas Rebak Kellogg Lehman DeMaria development corporation stated actionable & Tague, L.L.P., for appellants. claim against purchasers of land for tortious interference with advantageous Linda A. Conahan and Ann M. Burke ofEnglish, McCaughan business relationship consisting of shareholders & O'Bryan, P.A., Fort Lauderdale, for Appellees Marvin agreement between controlling shareholder and Danto, James Danto and Broward International Commerce non-controlling shareholders; non-controlling Park, L.P. shareholder allegedly notified purchasers that controlling shareholder had no authority to Mimi L. Sall and Bradford Swing of Stearns Weaver Miller convey property without express consent of Weissler Alhadeff & Sitterson, P.A., Fort Lauderdale, co- other shareholders, controlling shareholder counsel, for Appellee Broward International Commerce Park, and purchasers allegedly met in secret to LP. Bell yruipenty, ini xam-cnatpolling, ciareholders Joseph S. Geller and Peggy Fisher of Geller, Geller & alleged that they were damaged. Garfinkel, Hollywood, for Appellees Delores Sawyer, David Sawyer and Quality Concrete & Rental, Inc. [8] Torts ©» Defense, justification or privilege in Opinion general is TESCO AP AD wens ad menace Mh Ej WARNER, C.J. oninien igpeesiy a aint s aU Tenses, This is an appeal from a final order dismissing ethan. appellants' (“the Abele Group”) complaint for constructive ’ oon trust and tortious interference against the appellees, Dantos, 13 Cases that cite this headnote a. ; : . and for injunctive relief against all of the appellees. The underlying transaction for which relief was sought involved [9] Torts “© Injury and causation a failed land and construction transaction. We affirm the trial Claimof intentional interference with a contract court's dismissal of the constructive trust count against the is sufficiently independent to withstand bar of Dantos because they did not hold the property on which economic loss rule. the constructive trust was sought. However, we reverse the dismissal of the count for tortious interference, as the 2 Cases that cite this headnote complaint sufficiently alleged all elements of that cause of action. In regards to the injunction, we affirm. {10] Injunction *= Acquisition and disposition of property; mortgages and security agreements Non-controlling shareholders of — ‘and I. Allegations of the Complaint. development corporation were not entitled to ; . : : injunction, aginst lated purchaser preventing The detailed allegations ofthe complaint ims attachisncaity disposition of any. of corparation’s. ‘assets; explain the factual background surrounding this case. Abele v. Sawyer, 750 So.2d 70 (1999) 24 Fla. L. Weekly D2396 Charles Abele originally entered into a contract with Village to provide $1,250,000 in additional capital to assist in the Development to purchase approximately 25 acres of vacant | completion of the project, to be credited against a purchase land for the purpose of constructing and developing a price of $21 million. After BICC approved the Dantos as commercial center which he intended to sell. The acreage —_purchasers, Charles Abele and David Sawyer, as developers, was divided into several parcels which Abele could purchase signed a purchase contract with the Dantos, but the contract individually at certain set intervals. For this purpose, provided that the Dantos were contracting “not individually he formed a corporation called Broward International but on behalf of an entity to be formed and without personal Commerce Center (“BICC”). Needing additional financing, _ liability.” The purchase agreement permitted the Dantos he brought the Sawyers and the Ralphs into the transaction, to assume development of the property and acquire the Several agreements were entered into by the various parties. remaining land from Village Development if BICC were in Holly Abele and Delores Sawyer executed an irrevocable — default of its obligations. The Dantos subsequently assigned voting trust. Charles Abele and Delores Sawyer signed an their rights under the purchase agreement to Commerce organizational statement as BICC directors and all of the Park, a limited partnership whose general partner was Danto parties entered into a Shareholder's Agreement. As a result Investment Company, which was wholly owned by the of all of these documents, Delores Sawyer became BICC's _—_— Dantos. The complaint alleges that Village Development has president, secretary, treasurer, and director. Charles Abele — not declared BICC in default of any of its obligations, as of was the named vice-president and director of the company. the date of the amended complaint. Delores also owned 50%