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Post-Tiara: Contracts Are Still King

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Illustration by Barbara Kelley

Contracts are voluntary undertakings, and contracting parties are free to bargain for — and specify — the terms and conditions of their agreement. That freedom is indeed a constitutionally protected right…. [I]t is not the province of a court to second guess the wisdom of their bargain, or to relieve either party from the burden of that bargain by rewriting the document. Rather, it is a court’s duty to enforce the contract as plainly written.[1]

The independent tort doctrine prohibits tort actions between parties to a contract where the plaintiff cannot assert a tort claim independent of a claim for breach of contract. In other words, one cannot assert a tort action premised upon the same issues addressed in a contract. The doctrine serves to bar a tort claim where the allegedly offending party has committed no breach of duty independent of a breach of its contractual obligations.[2] This provides stability for businesses and consumers by ensuring the contracts that they enter into will not be circumvented or cast aside. The independent tort doctrine also provides benefits to litigants and courts by ensuring cases are streamlined and cost-effective.

Although the doctrine advances fundamental societal goals and can be simply stated as a proposition, it has proved vexing for both litigants and courts in application. Confusion surrounding the doctrine and its enforcement persists and has continued following Tiara Condominium Association, Inc. v. Marsh & McLennan Companies, Inc., 110 So. 3d 399 (Fla. 2013), where the Florida Supreme Court held the economic loss rule — a related but distinct doctrine to curb tort liability — applies only in the products liability context.[3]

The majority’s opinion in Tiara prompted a debate among the justices, with Justice Pariente writing a concurrence, and then-Chief Justice Polston and Justice Canady each writing dissents. Justice Pariente maintained that the majority’s decision would not affect common law principles of contract requiring that a tort claim be independent of any breach of contract claim. Justices Polston and Canady, however, expressed concern that, in limiting the application of the economic loss rule to products liability cases, the majority’s decision greatly expanded tort law at the expense of contract law and could result in every breach of contract claim being accompanied by a tort claim. Fortunately, courts have heeded Justices Canady’s and Polston’s well-founded concerns. Through nuanced application of Tiara and the independent tort doctrine, “fundamental contractual principles” have accomplished the same salutary purposes served by — and thereby supplanted — the contractual privity economic loss rule.[4]

Post-Tiara, courts and litigants have debated the contours — and even the survival — of the independent tort doctrine.[5] Much of this debate stems from different interpretations of Tiara’s majority opinion and Justice Pariente’s concurrence, as well as confusion surrounding the differences between the independent tort doctrine and economic loss rule.[6] Regardless of the cause, courts should expressly recognize Justice Pariente’s concurrence in Tiara and confirm the independent tort doctrine’s application in Florida to avoid the otherwise inevitable diminution of contract law and expansion of tort law that rightly concerned Justices Polston and Canady. Indeed, the independent tort doctrine is vital to Florida contract law. To encourage the just, speedy, and efficient resolution of cases on the merits, courts should analyze the independent tort doctrine at the motion to dismiss stage to ensure the doctrine is properly applied.

The Independent Tort Doctrine and the Economic Loss Rule

The Independent Tort Doctrine — Under the independent tort doctrine, “to set forth a claim in tort between parties in contractual privity, a party must allege action beyond and independent of breach of contract that amounts to an independent tort.”[7] Simply stated, a tort claim must be independent from any breach of contract claim.[8] Derived from fundamental contract principles, the doctrine ensures that parties in contractual privity cannot recast causes of action that are otherwise breach of contract claims as tort claims.[9]

Despite its apparent simplicity, the standard for applying the independent tort doctrine remains unsettled.[10] For example, it is sometimes unclear what distinguishes an “independent” tort from a “dependent” tort.[11] Generally, a tort is independent if “it requires proof of facts separate and distinct from the breach of contract.”[12] To make this determination, courts look at whether there is “any meaningful”[13] or “substantive”[14] distinction between the tort claim and breach of contract claim.

A claim for fraudulent misrepresentation, for example, is not an independent tort where the claim is “inextricably intertwined” with the performance of a contract.[15] There is also no independent tort for negligence where a party to a contract claims the other party breached a duty owed to it by failing to perform under the parties’ contract.[16] Likewise, fraudulent breaches or performances of contracts are not independent torts.[17] This means there is no independent tort where “a party to the contract claims to have performed but has actually just tricked the other party into believing that they have.”[18]

Fraudulent inducement claims often require close analysis because “almost any contract claim can be framed as a fraud in the inducement action.”[19] A fraudulent inducement claim is independent of a breach of contract claim where the alleged fraudulent representation concerned present conduct or circumstances — meaning the representation was “verifiably true or false at the time the representation was made.”[20] Conversely, there is no independent tort where the alleged fraudulent representation concerned future conduct and circumstances.[21] This means a fraudulent representation concerning the performance of a contract — which is a future act that has yet to occur — cannot support an independent tort, nor can a fraud in the performance claim mislabeled as a fraud in the inducement claim survive.[22] Similarly, depending upon the nature of the action, courts have both recognized and rejected claims of negligent misrepresentation, fraud,[23] breach of fiduciary duty,[24] fraudulent inducement,[25] fraudulent concealment,[26] conversion, civil theft,[27] tortious interference with business relationships,[28] negligent disbursement of funds,[29] racketeering,[30] negligent infliction of emotional distress,[31] and malpractice[32] as independent torts that can survive when a contract exists between the parties.

Distinguishing the Economic Loss Rule — The economic loss rule prevents parties in contractual privity with each other from bringing tort claims where the damages claimed are purely economic.[33] Prior to Tiara, the economic loss rule applied in two situations: 1) when the parties negotiated remedies in their contract; and 2) when a defective product damages itself but does not cause personal injury or damage to other property.

Although the independent tort doctrine and the economic loss rule are related principles, they are not the same. Confusion surrounding these principles remains due to courts’ and litigants’ struggle to differentiate them. Some courts have explained the independent tort doctrine and economic loss rule are different principles,[34] while others have indicated the independent tort doctrine is merely the economic loss rule but with a different name.[35] Others describe the independent tort doctrine as “an off-shoot of”[36] or “corollary to”[37] the economic loss rule.

The independent tort doctrine, however, predates the economic loss rule. The Florida Supreme Court explained the independent tort doctrine 30 years prior in Griffith v. Shamrock Village, Inc., 94 So. 2d 854 (Fla. 1957); whereas, the economic loss rule was not adopted by the Florida Supreme Court until Florida Power & Light Co. v. Westinghouse Electric Corp., 510 So. 2d 899 (Fla. 1987).[38] As observed by Justice Pariente in Tiara, “[t]he economic loss rule is not a long-standing common law rule that has always existed in our jurisprudence.”[39]

Regardless of their origins, the independent tort doctrine and the economic loss rule are distinct principles. Under the economic loss rule, a tort action is barred if the only damages suffered are economic losses. Under the independent tort doctrine, a tort action is barred if the defendant has not committed a breach of duty apart from any breach of contract or where a tort claim is premised upon issues encompassed within the parties’ agreement. The independent tort doctrine can be understood as another way of saying a contractual relationship does not create a duty in tort law.[40] In sum, the economic loss rule concerns damages, and the independent tort doctrine concerns duty.[41]

Tiara and its Aftermath

In Tiara, the Florida Supreme Court addressed a question of Florida law that was determinative of a cause pending before the 11th Circuit Court of Appeals with no apparent controlling precedent. The question related to whether an insurance broker provided professional services such that the broker could not assert the economic loss rule as a bar to tort claims seeking economic damages that arise from a contractual relationship between the broker and the insured.[42] The Florida Supreme Court recognized that the certified question, however, depended upon the continued vitality of the economic loss rule in cases involving contractual privity.[43] The Florida Supreme Court, therefore, restated the certified question as an inquiry regarding whether the economic loss rule barred an insured’s suit against a broker where the parties are in contractual privity and the damages sought consisted solely of economic losses.[44] The court answered the question in the negative and limited the economic loss rule’s application strictly to products liability cases.[45] In so doing, the court receded from its prior rulings to the extent that they applied the economic loss rule beyond the products liability context.[46]

In departing from its prior expansion of the economic loss rule, the court justified abrogating and confining the rule to its origin in the products liability realm — and departing from its fidelity to stare decisis — based upon its adherence to a higher maxim: that precedent must yield when “necessary to vindicate other principles of law or to remedy continued injustice.”[47] According to the court, “[o]ur experience with the economic loss rule over time…now demonstrates that expansion of the rule beyond its origins was unwise and unworkable in practice.”[48] When the court reined in the economic loss rule because its application had proven impracticable beyond the confines of the products liability context, it left doubt as to the “fundamental contractual principles” that “properly delineate the general boundary between contract law and tort law,” requiring a valuable concurrence from Justice Pariente.[49]

Post-Tiara, many state[50] and federal district courts[51] in Florida continue to apply the independent tort doctrine. The 11th Circuit has indicated the doctrine may continue to apply as well.[52] Nevertheless, some courts and commentators have indicated the independent tort doctrine did not survive Tiara.[53] The confusion may stem in part from litigants’ difficulty in differentiating the distinct principles underpinning the economic loss rule, as described by the Florida Supreme Court. Essentially, the court described the economic loss rule as two types of rules: the “contractual privity economic loss rule” and the “products liability economic loss rule.”[54] Tiara disposed of the former type by holding the economic loss rule only applies in the products liability context.[55] But the decision was aimed at clarifying the economic loss rule’s application, not disposing of the principle behind the contractual privity economic loss rule — which predates the economic loss rule. Indeed, as explained by Justice Pariente, the contractual privity economic loss rule was “neither a necessary nor a principled mechanism” for dismissing tort claims interconnected with breach of contract claims. Instead, basic contractual principles properly dispose of such tort claims related to contract claims.

A close reading of Tiara and its progeny demonstrates that, despite a close call, the independent tort doctrine is alive and well. Indeed, Justice Labarga’s opinion for the court — in which Justices Pariente, Lewis, Quince, and Perry concurred — arguably sought to allay the dissenting justices’ concerns by reiterating the “principled origins” of the economic loss rule and “the rationale being that in those cases ‘contract principles [are] more appropriate than tort principles for resolving economic loss without an accompanying physical injury or property damage.’”[56]

Importantly, the Tiara opinion twice noted that the court’s prior decision in AFM Corp. v. Southern Bell Telephone & Telegraph Co., 515 So. 2d 180 (Fla. 1987), remained sound based upon “fundamental contractual principles.”[57] In AFM, the Florida Supreme Court ultimately rejected AFM’s bid to pursue a negligence claim where its contract with Southern Bell “defined the limitation of liability through bargaining, risk acceptance, and compensation,” and AFM “had not proved that Southern Bell committed a tort independent of the breach of contract.” While the court receded from the AFM decision, it only did so “to the extent that it was unnecessarily expansive in its reliance on the economic loss rule as opposed to fundamental contractual principles.”

In Tiara, the court paved the way to preserve these fundamental contractual principles — including the independent tort doctrine — while also overruling the application of the economic loss rule outside of the products liability context. Specifically, Tiara reaffirmed the original rationale and intent of the economic loss rule — built upon the propriety of relying upon contract law over tort law to protect parties’ economic expectations — and reaffirmed that the outcome of the AFM decision was correct and remained good law based upon fundamental contractual principles, rather than the application of the economic loss rule. As such, the independent tort doctrine was not overruled by Tiara, and it can — and should — continue to be reinvigorated and reinforced to accomplish “[t]he goal of preventing contract law from drowning in a sea of tort.”[58]

Contracts Remain King

Florida courts should apply Justice Pariente’s concurrence in Tiara and affirm the independent tort doctrine’s application in Florida. The independent tort doctrine is vital to Florida law for numerous reasons. In particular, the independent tort doctrine protects society’s freedom of contract. Furthermore, the independent tort doctrine encourages the just, speedy, and inexpensive resolution of cases on the merits. To ensure the benefits of the independent tort doctrine, however, courts should apply the doctrine at the motion to dismiss stage.

The Independent Tort Doctrine Protects Freedom of Contract — The independent tort doctrine protects the sanctity of contracts and upholds the constitutional right to freedom of contract. Freedom of contract is a “constitutionally protected right.”[59] The independent tort doctrine protects this constitutional right by giving the parties the benefit of their bargain. Indeed, the doctrine is built upon the recognition that “[o]nce the contract has been made, the parties should be governed by it.”[60] Permitting parties to seek tort remedies when their relationship is governed by contract allows parties to obtain a better bargain than they originally made.[61] “[I]n the language of Tiara Condo, the tort claims do not ‘circumvent[ ] the allocation of losses set forth in the contract,’ but conform to them.”[62]

Further, a tort claim grounded in a breach of contract claim threatens not only the integrity of that contract but also threatens the integrity of future contracts. The stability of future business transactions is jeopardized by allowing a party to seek a better bargain ex post.[63] The independent tort doctrine provides critical stability to businesses and consumers in ensuring the contracts they negotiated cannot be ignored, circumvented, or cast aside.[64] As such, entering into a contract or securing a bargained-for agreement is a moment of consequence, not a trivial undertaking. The sweat equity expended, opportunity costs foregone, and efforts leading to the contract’s execution are not rendered meaningless.

Along with the broader impact upon Florida business and commerce, the independent tort doctrine can provide tangible, direct benefits to litigants and courts alike. Through its enforcement, “recovery for breach of contract is typically limited to the bargained-for remedies, because to bring a tort claim grounded in a breach of contract threatens the integrity of that contract by allowing a party to ‘in effect, seek[] to obtain a better bargain than originally made.’”[65] When courts narrow the potential scope of the parties’ dispute in accordance with their contract, the parties obtain the benefits they contracted for. Indeed, the bargained-for terms and scope of the contractual provisions at issue have both substantive and procedural meaning and value. As further explained below, this crystallizes the dispute, limits the scope of discovery, and reduces the attendant costs and attorneys’ fees.

Furthermore, the independent tort doctrine prevents litigants from circumventing the longstanding principle that punitive damages are not permitted in breach of contract cases.[66] The remedial goals of contract law and tort law are generally to put the innocent party in the same place he would have been had the breach or tort not occurred.[67] But unlike contract law, tort law also provides for punitive damages. Allowing plaintiffs to recover under a tort theory when the parties’ relationship is governed by contract permits plaintiffs to get around the foundational contract rule of forbidding punitive damages in breach of contract cases.[68] “From a practical perspective,” simply allowing plaintiffs to even plead a claim for punitive damages where a tort claim is not barred by contract “can be a ‘game changer’ in litigation” as it “subjects the defendant to financial discovery that would otherwise be off limits and potentially subjects the defendant to uninsured losses.”[69]

In sum, the independent tort doctrine protects society’s freedom of contract and longstanding contract principles under Florida law.

The Independent Tort Doctrine Fosters the Just, Speedy, and Inexpensive Resolution of Cases on Merits — Not only does the doctrine uphold Florida’s constitutionally protected right to contract, it can yield additional, positive externalities. The independent tort doctrine encourages the just, speedy, and inexpensive resolution of cases on the merits. The Federal Rules of Civil Procedure and the Florida Rules of Civil Procedure share a mutual goal of “secur[ing] the just, speedy, and inexpensive determination of every action.”[70] The independent tort doctrine furthers this goal by simplifying the discovery process, ensuring cases are resolved expeditiously, and allowing parties to resolve cases on the merits.

Permitting tort claims in a simple breach of contract case could drive up the cost of litigation, dramatically slow down the case’s resolution, and frustrate the parties. Specifically, the scope of discovery is vastly expanded by allowing tort claims for every breach of contract case. Too broad of a scope for discovery will cause discovery costs to increase expeditiously. Likewise, calculation of damages becomes more costly and difficult if plaintiffs are pursuing torts.[71] Additionally, the need to examine years of irrelevant interactions that do not relate to the breach of contract claim will frustrate the parties. Business-defendants will also become frustrated because their employees will have their attentions diverted to litigation, rather than focusing on current and future deals. In order to address the standard of care as part of a dispute centered on the more nebulous issue of whether certain conduct was reasonable, studies have shown that “[a]ttorneys in tort cases were far more likely to have engaged in expert disclosure than were attorneys in other types of cases” — further increasing litigation costs.[72] As a result, without the independent tort doctrine, defendants face the possibility of resolving cases other than on the merits for fear of exorbitant discovery costs and exposure to irrelevant document production, and plaintiffs need to invest more in pursuing their claim in order to reach the merits of their claims.

By contrast, with more focused pleadings and issues through application of the independent doctrine, parties must engage in more targeted — and, thus, defensible — discovery. This reduces the need for discovery disputes and related motion practice.[73] Beyond refining discovery and preempting certain all-too-common squabbles during the parties’ factual investigation of their claims and defenses, fewer legal issues would remain for courts and litigants to address at the close of discovery through summary judgment. With less to brief and argue, parties would preserve their resources and ability to pursue a claim through trial. This would, in turn, remove another practical barrier to securing a decision on the merits.[74]

Streamlined actions would require less judicial labor — sparing precious court resources — and increase access to justice for more Floridians by reducing the burdens imposed upon an already overtaxed branch of our government. Further, with parties avoiding skirmishes regarding extraneous issues that often require court intervention, disputes can proceed more efficiently. For parties of all sizes, this would “protect them against the risk of being enmeshed in and harassed by protracted litigation” so that they can invest their energy, attention, and resources into more productive endeavors.[75] By eliminating wars of attrition and their concomitant opportunities for extended and escalating hostility, parties can invest more toward their actual claims and focus on the ultimate issues in a case. This would pay dividends to parties and counsel, as it would scale back an impetus for attorneys to resort to gamesmanship (and the temptation to dispense with the civility and professionalism required for the legal system to function effectively).

In sum, courts should encourage litigants to resolve cases on the merits. When parties to litigation are in privity of contract, the court should look to and apply the plain language of the contract to which the parties agreed.[76] To do so in a cost-effective, speedy manner is beneficial to both courts and litigants. The independent tort doctrine is, thus, beneficial to all.

The Independent Tort Doctrine Is Properly Analyzed at the Motion to Dismiss Stage — Some courts do not analyze the independent tort doctrine at the motion to dismiss stage.[77] Instead, these courts often wait until the summary judgment stage. Yet, the damage of costly litigation, slowing down the case, and frustrating the parties is already done by the time summary judgment motions are filed. Indeed, most cases settle before the parties even file motions for summary judgment.[78] With rising litigation cost, frustrating discovery, and distracted employees, businesses will have numerous reasons unrelated to the merits of their cases to settle before having an opportunity to argue the independent tort doctrine.

Courts must, therefore, apply the independent tort doctrine at the motion to dismiss stage to ensure the doctrine functions properly. Justice Pariente’s concurrence in Tiara supports this conclusion: “[I]n order to bring a valid tort claim, a party still must demonstrate that all of the required elements for the cause of action are satisfied, including that the tort is independent of any breach of contract claim.”[79] The two cases cited by Justice Pariente to support this assertion also confirm that the independent tort doctrine is properly analyzed at the motion to dismiss stage.[80]

Analyzing the independent tort doctrine at the motion to dismiss stage should not be a tall task either. For example, fraudulent breaches or performances of contracts are not independent torts. The Federal Rules of Civil Procedure and the Florida Rules of Civil Procedure both require fraud be pleaded with particularity.[81] Just as courts require that plaintiffs plead the who, what, when, where, and how of a fraud claim,[82] courts should require plaintiffs plead with particularity why the fraud claim is independent of the breach of contract claim. Additionally, plaintiffs seeking to bring negligence claims in addition to breach of contract claims must allege an independent duty distinct from the defendant’s duties — or limitations — under the contract. Negligence claims are often dismissed at the motion to dismiss stage if the plaintiff fails to allege a duty or no such duty exists as a matter of law.[83]

Further, trial courts already require a “specific evidentiary showing” before a plaintiff can plead a punitive damages claim to expand the scope of a dispute and similarly require specific allegations and “clear and unequivocal evidence” of contract modification in order to “invoke” the “limited exception to the well-settled rule requiring that courts enforce contracts as written.”[84] Likewise, quantum meruit or unjust enrichment claims must fail in the face of an express agreement setting forth the relationship of the parties and their duties to each other.[85] Requiring heightened allegations at the outset of a dispute and specific evidentiary showings before allowing a plaintiff to inject a tort claim into litigation would, therefore, be consistent with both procedural and substantive Florida law, as well as the underlying public policy served, and the constitutionally protected liberty to contract.

In sum, courts must apply the independent tort doctrine at the motion to dismiss stage to ensure the doctrine is properly applied.

Conclusion

The independent tort doctrine is a vital component of Florida law. It protects society’s freedom of contract and ensures cases are resolved on the merits. Tiara did not abrogate the independent tort doctrine, and contracts remain king in Florida. Litigants should raise the independent tort doctrine on a motion to dismiss and make clear that they are not seeking dismissal based on the now limited economic loss rule. Florida courts should apply the doctrine at the motion to dismiss stage to ensure parties continue to benefit from their bargains.

[1] Okeechobee Resorts, LLC v. E Z Cash Pawn, Inc., 145 So. 3d 989, 993 (Fla. 4th DCA 2014) (citations omitted).

[2] Freeman v. Sharpe Res. Corp., No. 6:12-cv-1584-Orl-22TBS, 2013 WL 2151723, at *8 (M.D. Fla. May 16, 2013).

[3] Lamm v. State St. Bank & Tr., 749 F.3d 938, 947 (11th Cir. 2014) (observing “the law is still somewhat unsettled in this area,” but citing Justice Pariente’s concurrence and noting: “Tiara may, however, have left intact a separate hurdle, namely that ‘a party still must demonstrate that. ..the tort is independent of any breach of contract claim,’” and further adding that “[w]hile the exact contours of this possible separate limitation, as applied post-Tiara, are still unclear, the standard appears to be that ‘where a breach of contract is combined with some other conduct amounting to an independent tort, the breach can be considered negligence.’”); see also Marian Farms, Inc. v. Suntrust Banks, Inc., 135 So. 3d 363, 363-64 (Fla. 5th DCA 2014).

[4] Likewise, the majority’s opinion quoted the court’s prior observation of self-imposed restraint as an impetus for soundly employed caution. Tiara, 110 So. 3d at 406 (“We hesitate to speculate further on situations not actually before us.”) (quotations omitted).

[5] See, e.g., Moecker v. Bank of Am., N.A., No. 813CV01095SCBEAJ, 2013 WL 12159056, at *9-10 (M.D. Fla. Oct. 21, 2013) (citing Tiara, 110 So. 3d at 401 and De Sterling v. Bank of Am., N.A., 2009 WL 3756335, at *2 (S.D. Fla, 2009) (explaining that “independent tort doctrine [is] also known as the economic loss doctrine”)); Tiara Condo. Ass’n, Inc. v. Marsh, USA, Inc., 991 F. Supp. 2d 1271, 1279 (S.D. Fla. 2014) (“Arguably, Florida’s ‘independent tort rule’ is but a preliminary version, or simple predecessor, of what later became known as the ‘contractual privity economic loss rule’ — a rule which similarly posits, ‘[A] tort action is barred where a defendant has not committed a breach of duty apart from a breach of contract,’” and it “may be a logical and necessary implication” that “[u]nder this view, the Florida Supreme Court’s restriction of the contractual privity economic loss rule, announced in Tiara II, necessarily swept with it the corollary concept of the “independent tort rule.”); Doherty v. Allianz Life Ins. Co. of N. Am., No. 2:18-cv-377-FtM-29NPM, 2019 WL 3934100, at *4 (M.D. Fla. Aug. 20, 2019) (contrasting Tiara’s concurring and dissenting opinions and explaining “[t]he [11th] Circuit has noted that whether the concurring or dissenting approach controls is ‘still unclear’” because, “[f]ollowing Tiara, some district courts have adhered to Justice Pariente’s interpretation and found that a tort claim must be independent of any claim for breach of contract,” but “[o]ther district courts have found the dissent’s approach more persuasive”).

[6] See, e.g., Tulepan v. Roberts, No. 14-CV-80574, 2015 WL 235441, at *6-7, 11 (S.D. Fla. Jan. 16, 2015) (explaining that “the Florida Supreme Court reviewed the original purpose and development of the economic loss rule, a judicially created doctrine that sets forth the circumstances under which a tort action is prohibited if the only damages suffered are economic losses,” but that “Tiara Condominium does not overrule common law contract principles” because,“[a]s Justice Pariente observes, common law contract principles behave similarly to the economic loss rule in that, for a plaintiff in contractual privity to bring a valid tort claim, he must still prove the tort is independent of any breach of contract” and “[t]hus, even in light of Tiara Condominium, fundamental contract principles continue to bar a tort claim where a defendant has not committed a breach of duty independent of his breach of contract”); Getchell v. Suntrust Bank, No. 6:15-CV-1702-ORL-TBS, 2016 WL 740603, at *4 (M.D. Fla. Feb. 25, 2016) (denying motion to dismiss count for money had and received based upon Justice Pariente’s concurrence because “[t]he statement is dicta, taken from a concurring opinion in a case that concerns the application of the economic loss rule” and “[i]t does not suffice as a basis to dismiss [p]laintiffs’ claim).

[7] Reagan Wireless Corp. v. Apto Sols., Inc., No. 18-cv-61147-BLOOM/Valle, 2018 WL 4901127, at *3 (S.D. Fla. Oct. 9, 2018) (quoting Kay v. Ingenio, Filiate De Loto-Quebec, Inc., No. 13-61687-CIV, 2014 WL 2215770, at *4 (S.D. Fla. May 29, 2014)).

[8] Prewitt Enters, LLC v. Tommy Constantine Racing, LLC, 185 So. 3d 566, 569 (Fla. 4th DCA 2016).

[9] S. Wind Aviation, LLC v. Cessna Aircraft Co., No. 6:12-cv-1376-Orl-22DAB, 2014 WL 12570958, at *5 (M.D. Fla. July 15, 2014).

[10] King v. Bencie, 752 F. App’x 881, 883 (11th Cir. 2018) (noting independent tort doctrine still remains unsettled under Florida law and acknowledging that “Tiara may…have left intact [this] separate hurdle”); In re Jade Winds Ass’n, Inc., No. 15-17570-BKC-RAM, 2019 WL 1386048, at *3 (Bankr. S.D. Fla. Mar. 25, 2019).

[11] Travelers Indem. Co. of Conn. v. Richard McKenzie & Sons, Inc., 326 F. Supp. 3d 1332, 1345 (M.D. Fla. 2018).

[12] HTP, Ltd. v. Lineas Aereas Costarricenses, S.A., 685 So. 2d 1238, 1239 (Fla. 1996); see also Global Quest, LLC v. Horizon Yachts, Inc., 849 F.3d 1022, 1031 (11th Cir. 2017) (holding fraudulent inducement claim was independent of breach of contract claim because “the fraud allegations [were] separate and distinct from defendants’ performance under the contract”).

[13] Mortg. Contracting Servs., LLC v. J & S Prop. Servs. LLC, No. 8:17-cv-1566-T-36CPT, 2018 WL 3219386, at *3 (M.D. Fla. July 2, 2018).

[14] CEMEX Constr. Materials Fla., LLC v. Armstrong World Indus., Inc., No. 3:16-cv-186-J-34JRK, 2018 WL 905752, at *11 (M.D. Fla. Feb. 15, 2018).

[15] Id. (allowing fraudulent inducement claim to proceed, but finding fraudulent concealment allegations “more properly characterized” as non-cognizable claim for fraud in the performance of the contract); Peebles v. Puig, 223 So. 3d 1065, 1068-69 (Fla. 3d DCA 2017) (reversing trial court’s judgment in favor of plaintiff on fraud claim after jury returned verdict against defendant and defendant appealed denial of motion to dismiss, for summary judgment, and for directed verdict; explaining defendant’s fraudulent misrepresentations led plaintiff to continue to perform contractual duties and holding “trial court should have entered a directed verdict” for defendant because “[w]hen, as here, a contract has been breached, a tort action lies only for acts independent of those acts establishing the contract’s breach” and “[w]hile we have scoured the record in this case to find evidence supporting the jury’s verdict, we can find no evidence of a tort or tort damages, independent and distinct from [limited liability company’s] breach of contract”).

[16] See Elec. Sec. Sys. Corp. v. S. Bell Tel. & Tel. Co., 482 So. 2d 518, 519 (Fla. 3d DCA 1986).

[17] Manor House, LLC v. Citizens Prop. Ins. Corp., 277 So. 3d 658, 662 (Fla. 5th DCA 2019) (“Certain allegations in the fraud count essentially alleged a fraudulent breach of contract, which would not amount to an independent tort.”); see also Peebles, 223 So. 3d at 1068 (citing La Pesca Grande Charters, Inc. v. Moran, 704 So. 2d 710, 712-13 (Fla. 5th DCA 1998), as “explaining the difference between fraud in the inducement and fraud in the performance, the latter not constituting a separate cause of action from that of a concurrent breach of contract action”).

[18] Prewitt Enters., LLC, 185 So. 3d at 569.

[19] Hotels of Key Largo, Inc. v. RHI Hotels, Inc., 694 So. 2d 74, 77-78 (Fla. 3d DCA 1997) (quoting Puff ‘N Stuff of Winter Park, Inc. v. Bell, 683 So. 2d 1176, 1179-80 (Fla. 5th DCA 1996) (Harris, J., concurring specially)).

[20] Prewitt Enters., LLC, 185 So. 3d at 570.

[21] Id. at 569.

[22] Id.; Coffey v. WCW & Air, Inc., No. 3:17-cv-90-MCR-CJK, 2018 WL 4154256, at *6 (N.D. Fla. Aug. 30, 2018); LynkUs Commc’s, Inc. v. WebMD Corp., 965 So. 2d 1161 (Fla. 2d DCA 2007) (Canady, J.) (“LynkUs is likewise unjustified in relying on authorities concerning the tort of fraudulent inducement. LynkUs has not made a claim for fraudulent inducement, but for fraud in the performance of an agreement.”) (citations omitted).

[23] Compare Azure, LLC v. Figueras Seating U.S.A., Inc., No. 12-CV-23670-UU, 2013 WL 12093811, at *6 (S.D. Fla. July 18, 2013) (holding fraud and negligent misrepresentation claims could proceed where they were “attended by some additional conduct that [was] not alleged with respect to the breach of contract claim”), and U.S. Fire Ins. Co. v. ADT Sec. Servs., Inc., 134 So. 3d 477, 480 (Fla. 2d DCA 2013) (holding “USFI alleged a legally sufficient cause of action which was independent of any breach of contract and that the trial court erred by granting judgment on the pleadings which resulted in a dismissal with prejudice” because “although USFI’s allegation was inartfully worded, it appears to be one alleging negligent misrepresentation, which is independent of any breach of contract”), with Perez v. Scottsdale Ins. Co., No. 19-CV-22346, 2020 WL 607145, at *2-3 (S.D. Fla. Feb. 7, 2020) (holding fraud, fraudulent inducement, and negligent misrepresentation claims could not proceed under independent tort doctrine because “[p]laintiff identifies no independent action or damages outside of those relevant to the breach of contract nor any specific statement from [d]efendant that misled her (save for what is written in the [p]olicy itself)”).

[24] Compare Circuitronix, LLC v. Shenzen Kinwong Elec. Co., Ltd., No. 17-CV-22462-UU, 2018 WL 7287192, at *10 (S.D. Fla. Jan. 31, 2018) (“The Court is aware of no Florida or [11th] Circuit cases applying Tiara to a breach of a fiduciary duty that is memorialized in a contract, and accordingly cannot conclude that Tiara alone provides sufficient basis to dismiss this claim.”), and Invo Fla., Inc. v. Somerset Venturer, Inc., 751 So. 2d 1263, 1267 (Fla. 3d DCA 2000) (holding breach of fiduciary duty claim and fraudulent transfer claims not barred and reversing trial court that denied motion to dismiss without prejudice before subsequently granting motion for partial summary judgment in which defendants were “claiming the same thing they did in their motion to dismiss” but “[t]hey did not challenge the facts”), and Doherty, 2019 WL 3934100, at *5 (denying motion for summary judgment on breach of fiduciary duty claim because “plaintiff has nonetheless alleged torts independent of breach of contract” and “a claim for breach of fiduciary duty is a “‘well-established [independent] tort[ ]…even if there is an underlying oral or written contract”), with Capten Trading Ltd. v. Banco Santander Int’l, No. 17-20264-CIV, 2018 WL 1558272, at *5 (S.D. Fla. Mar. 29, 2018) (dismissing negligence and breach of fiduciary duty claims under independent tort doctrine), and Tulepan, 2015 WL 235441, at *13 (granting summary judgment in favor of defendant where all of the allegations at issue “arise out of the parties’ contractual relationships” and explaining “[u]nder Florida law, a cause of action for breach of fiduciary duty will not lie where the claim of breach is dependent upon the existence of a contractual relationship between the parties…because the duty is owed only as a result of the existence of the contract”).

[25] Compare Lineas Aereas Costarricenses, S.A., 685 So. 2d at 1239 (“fraudulent inducement claims may coexist with breach of contract claims” and approving of ruling that fraud in the inducement claim was independent tort), and Maxted v. SATO Glob. Sols., Inc., 17-61769-CIV, 2018 WL 3109628, at *6 (S.D. Fla. Mar. 9, 2018) (denying motion to dismiss fraudulent inducement claim and rejecting as “meritless” defendant’s argument that it was “impermissibly duplicative of [plaintiff’s] breach of contract claim” (citing Kaye v. Ingenio, Filiale De Loto-Quebec, Inc., 13-61687-CIV, 2014 WL 2215770, at *5 (S.D. Fla. May 29, 2014) (“Fraudulent inducement is generally ‘a tort independent from a breach of contract because it requires the plaintiff to prove facts separate and distinct from the facts necessary to prove the breach of contract.’”))), and Versant Funding, LLC v. Teras Breakbulk Ocean Navigation Enterprises, LLC, 17-CV-81140-WPD, 2018 WL 8660343, at *7 (S.D. Fla. Sept. 7, 2018) (denying motion to dismiss and explaining “[t]he Court disagrees with [d]efendants’ application of the independent tort doctrine to the fraud claims in this case” where “[p]laintiff sufficiently alleges facts demonstrating that [p]efendants fraudulently induced it to enter into the purchase and sale agreement (‘PSA’) for the Seattle invoice by representing presently existing facts,” and “[t]herefore, the minimal requirement of independence, that ‘the fraud allegations are separate and distinct from defendants’ performance under the contract,’ is met here” (citing Glob. Quest, LLC v. Horizon Yachts, Inc., 849 F.3d 1022, 1031 (11th Cir. 2017))), with Island Travel & Tours, Ltd., Co. v. MYR Indep., Inc., 45 Fla. L. Weekly D704 (Fla. 3d DCA Mar. 25, 2020) (reversing judgment entered against defendants after five-day jury trial and holding claims for fraud in the inducement and negligent misrepresentation were barred, as a matter of law, where based on the same underlying conduct giving rise to contract claim because “[i]t is a fundamental, long-standing common law principle that a plaintiff may not recover in tort for a contract dispute unless the tort is independent of any breach of contract” (citing Peebles, 223 So. 3d at 1068)).

[26] Temurian v. Piccolo, No. 18-CV-62737, 2019 WL 1763022, at *7-8 (S.D. Fla. Apr. 22, 2019) (holding fraudulent concealment claim barred by independent tort doctrine).

[27] Compare Pershing Indus., Inc. v. Estate of Sanz, 740 So. 2d 1246, 1248 (Fla. 3d DCA 1999) (“As with the claim of fraudulent inducement, the conversion and civil theft claims alleged in Counts III and IV of the amended complaint are independent torts, and summary judgment was improper.”), with Merch. One, Inc. v. TLO, Inc., No. 19-CV-23719, 2020 WL 248608, at **4, 6-7 (S.D. Fla. Jan. 16, 2020) (holding conversion claim barred by independent tort doctrine), and Island Travel & Tours, Ltd., Co. v. MYR Indep., Inc., 300 So. 3d 1236, 1240 (Fla. 3d DCA 2020) (affirming trial court’s entry of directed verdict in favor of individual defendants and judgment notwithstanding the verdict in favor of defendant corporate entity on plaintiff’s civil theft claims after five-day jury trial because “[t]he evidence below merely established the existence of a contractual dispute, nothing more”), and Walker v. Figarola, 59 So. 3d 188, 190 (Fla. 3d DCA 2011) (affirming judgment on the pleadings because second amended complaint failed to state cause of action for conversion or civil theft where plaintiffs “seek to recast their simple breach of contract claim into a tort claim” and, “[a]s this Court explained in [Ginsberg v. Lennar Florida Holdings, Inc., 645 So. 2d 490, 494 (Fla. 3d DCA 1994)], ‘[w]here damages sought in tort are the same as those for breach of contract a plaintiff may not circumvent the contractual relationship by bringing an action in tort’”).

[28] See ViSalus, Inc. v. Knox, No. 3:13-CV-107-J-39MCR, 2014 WL 12617580, at *5 (M.D. Fla. Dec. 5, 2014), report and recommendation adopted, 3:13-CV-107-J-39MCR, 2015 WL 12839914 (M.D. Fla. Jan. 27, 2015) (“Because [p]laintiff has not alleged that Knox has breached a duty apart from his alleged breach of the Non-Solicitation Agreements, [p]laintiff has failed to state a claim for tortious interference with business relationships in Count III.”).

[29] Doherty, 2019 WL 3934100, at *5 (denying motion for summary judgment because “Florida law recognizes that the negligent disbursement of funds is an independent tort”); Marian Farms, Inc., 135 So. 3d at 363-64 (reversing order dismissing plaintiff’s fourth amended complaint for claims of negligence because plaintiff “alleged independent torts and causes of action separate from SunTrust’s wrongful disbursement of funds on deposit” and holding “[t]his is not a case where [plaintiff] merely attempted to recast a breach of its contractual relationship with SunTrust based on the depository agreement by asserting claims that SunTrust negligently performed its contractual duties to its depositor”).

[30] See Circuitronix, 2018 WL 7287192, at *12 (“[T]he alleged racketeering acts here are the identical to the alleged breaches of the Manufacturer’s and Settlement Agreements. Accordingly, the claim must be dismissed with prejudice.”).

[31] See Wilson v. Bank of Am., No. 8:16-CV-2102-T-23AAS, 2016 WL 8243182, at *2 (M.D. Fla. Dec. 13, 2016), report and recommendation adopted, No. 8:16-CV-2102-T-23AAS, 2016 WL 8243181 (M.D. Fla. Dec. 29, 2016) (“Plaintiff’s claims for…negligent infliction of emotional distress…are also subject to dismissal, among other reasons, for running afoul of Florida’s independent tort doctrine….”).

[32] Martinez v. QBE Specialty Ins. Co., No: 8:18-cv-263-T-36AAS, 2018 WL 4354831, at *4 (M.D. Fla. Sept. 12, 2018); Moransais v. Heathman, 744 So. 2d 973 (Fla. 1999) (engineering company’s employees), abrogated by Tiara, 110 So. 3d at 399; Witt v. La Gorce Country Club, Inc., 35 So. 3d 1033, 1038-39 (Fla. 3d DCA 2010) (geologist).

[33] Indem. Ins. Co. of N. Am. v. Am. Aviation, Inc., 891 So. 2d 532, 536-37 (Fla. 2004).

[34] Nat’l Fire Ins. Co. of Hartford v. Johnson Controls Fire Protection LP, No. 19-14050-CIV-ROSENBERG/MAYNARD, 2019 WL 3428552, at *2 (S.D. Fla. Apr. 18, 2019) (describing the economic loss rule as “a different rule but having the same practical effect” as the independent tort doctrine but noting the rules “exist[] separately”).

[35] Travelers Indem. Co. of Conn., 326 F. Supp. 3d at 1345-46; Rubinstein v. Keshet Inter Vivos Tr., No. 17-61019-CIV-WILLIAMS, 2019 WL 4739402, at *6 (S.D. Fla. July 10, 2019) (“[T]he independent tort doctrine — formerly known as the economic loss rule.”); De Sterling v. Bank of Am., N.A., No. 09-21490-CIV, 2009 WL 3756335, at *2 (S.D. Fla. Nov. 6, 2009) (“[T]he independent tort doctrine (also known as the economic loss doctrine).”).

[36] Spears v. SHK Consulting & Dev., Inc., 338 F. Supp. 3d 1272, 1279 (M.D. Fla. 2018).

[37] Travelers Indem. Co. of Conn., 326 F. Supp. 3d at 1345.

[38] See also Tiara, 110 So. 3d at 405 (noting the “inception” of the economic loss rule in Florida was the court’s ruling in Florida Power).

[39] Tiara, 110 So. 3d at 409 (Pariente, J., concurring).

[40] See Travelers Indem. Co. of Conn., 326 F. Supp. 3d at 1345 (“If a contract imposes a duty and the defendant breaches that duty, the plaintiff must sue for breach of contract. If society imposes the duty, the plaintiff must sue in tort.”).

[41] But see Perez v. Scottsdale Ins. Co., CV 19-22761-CIV, 2019 WL 5457746, at *3-4 (S.D. Fla. Oct. 24, 2019) (“The rule prohibits claims in tort for damages which are the same as those for breach of contract so as to prevent plaintiffs from recovering duplicative damages for the same wrongdoing.” (quoting Kelly v. Lee Cty RV Sales Co., No. 18-cv-424, 2018 WL 3126750, at *2 (M.D. Fla. June 26, 2018)).

[42] Tiara, 110 So. 3d at 401-04.

[43] Id.

[44] Id.

[45] Id.

[46] Id. at 407.

[47] Id. (internal quotation marks and citations omitted).

[48] Id.

[49] Id. at 409 (Pariente, J., concurring).

[50] Manor House, LLC, 277 So. 3d at 662 (affirming trial court’s dismissal of fraud claim under independent tort doctrine); Marian Farms, Inc., 135 So. 3d at 363-64; U.S. Fire Ins. Co. v. ADT Sec. Servs., Inc., 134 So. 3d 477 (Fla. 2d DCA 2013).

[51] Nat’l Fire Ins. Co. of Hartford, 2019 WL 3428552, at *2 (“The Middle District of Florida continues to apply the Independent Tort Doctrine.”); Doherty, 2019 WL 3934100, at *4 (citing cases); CEMEX Constr. Materials Fla., LLC, 2018 WL 905752, at *10.

[52] Bencie, 752 F. App’x at 883 (noting independent tort doctrine still remains unsettled under Florida law); Lamm, 749 F.3d at 947.

[53] World Fuel Servs., Inc. v. Thrifty Propane, Inc., No. 16-20847-CIV, 2016 WL 11547771, at *6 (S.D. Fla. July 15, 2016) (“There is some disagreement among the district courts in this [c]ircuit on whether the independent tort rule remains intact following the Tiara decision.”); Getchell v. Suntrust Bank, No: 6:15-cv-1702-Orl-TBS, 2016 WL 740603, at *4 (M.D. Fla. Feb. 25, 2016); Carl’s Furniture, Inc. v. APJL Consulting, LLC, No. 15-60023-CIV, 2015 WL 1467726, at *4 (S.D. Fla. Mar. 30, 2015) (“the Florida Supreme Court has not adopted Justice Pariente’s concurrence as controlling law”); In re Sherwood Ins. Overseas Ltd., Inc., No. 6:10–bk–00584–KSJ, 2015 WL 4486470, at *12 (Bankr. M.D. Fla. July 22, 2015) (“Some legal scholars question the continuing vitality of the independent tort doctrine after the Florida Supreme Court’s decision in Tiara Condominium Association v. Marsh & McLennan Companies, which limited the economic loss rule, an analogous doctrine, to products liability claims. Others, including the esteemed judges of the [11]th Circuit…and the [c]hief [j]udge of the Middle District of Florida, suggest that the independent tort doctrine survived the holding in Tiara.”), aff’d, 615CV1469ORL40TBS, 2016 WL 5719450 (M.D. Fla. Sept. 30, 2016); Tiara Condo. Ass’n, Inc. v. Marsh, USA, Inc., 991 F. Supp. 2d 1271, 1279 (S.D. Fla. 2014).

[54] Tiara, 110 So. 3d at 402-03; Indem. Ins. Co. of N. Am., 891 So. 2d at 536-38.

[55] Tiara, 110 So. 3d at 407.

[56] Id. at 405 (quoting Moransais, 744 So. 2d at 979).

[57] Id. at 402, 405 n.2.

[58] Id. at 413.

[59] Okeechobee Resorts, 145 So. 3d at 993.

[60] Id. (citations and quotations omitted).

[61] Indem. Ins. Co. of N. Am., 891 So. 2d at 542 (“[W]hen the parties have negotiated remedies for nonperformance pursuant to a contract, one party may not seek to obtain a better bargain than it made by turning a breach of contract into a tort for economic loss.”).

[62] In re Jade Winds Ass’n, Inc., 2019 WL 1386048, at *3 (citations and internal quotation omitted).

[63] Indeed, among the other purposes to their agreement, the parties “have bargained for predictability and certainty….” See Okeechobee Resorts, 145 So. 3d at 993; see also Tank Tech, Inc. v. Valley Tank Testing, LLC, 244 So. 3d 383, 394 (Fla. 2d DCA 2018) (“This is simply a case of a party attempting to bring a tort claim to recover monies that it spent as a result of a contractual obligation to a third party. But negligence claims cannot proceed based on a party’s desire to relieve itself from a bad bargain.”) (emphasis added).

[64] As the 11th Circuit recently recognized, the primacy of contract applies with equal force in the consumer context — even where countervailing consumer protection purposes may exist. Medley v. Dish Network, LLC, 958 F.3d 1063, 1069-70 (11th Cir. 2020) (distinguishing precedent relying on common law tort principles and addressing — under common law principles governing contracts — whether the Telephone Consumer Protection Act allows a consumer to unilaterally revoke consent to receive automated calls when such consent is given as part of a bargained-for exchange and concluding that “[w]e, like the Second Circuit, are also unpersuaded by the argument that unilateral revocation of consent given in a legally binding agreement is permissible because it comports with the consumer-protection purposes of the TCPA”) (citing Reyes v. Lincoln Auto. Fin. Servs., 861 F.3d 51, 56 (2d Cir. 2017).

[65] Freeman, 2013 WL 2151723, at *7 (citations omitted).

[66] Cf. HGI Assocs., Inc. v. Wetmore Printing Co., 427 F.3d 867, 877 (11th Cir. 2005) (“Florida courts have further explained that the decision in [HTP, Ltd. v. Lineas Aereas Costarricenses, S.A., 685 So. 2d 1238 (Fla. 1996)] allows an award of punitive damages for fraudulent inducement despite additional claims for breach of contract.”).

[67] Capitol Envtl. Servs., Inc. v. Earth Tech, Inc., 25 So. 3d 593, 596 (Fla. 1st DCA 2009).

[68] Griffith v. Shamrock Village, Inc., 94 So. 2d 854, 858 (Fla. 1957) (“The general rule is that punitive damages are not recoverable for breach of contract, irrespective of the motive of defendant.”); TRG Desert Inn Venture, Ltd. v. Berezovsky, 194 So. 3d 516, 519-20, n.3 (Fla. 3d DCA 2016) (citing Ferguson Transp., Inc. v. N. Am. Van Lines, Inc., 687 So. 2d 821, 822-23 (Fla. 1996)) (“Florida’s independent tort rule precludes the recovery of punitive damages for a breach of contract claim unless the claimant has asserted a tort independent of the alleged breach of contract.”). In Lewis v. Guthartz, the Florida Supreme Court affirmed the Third District’s reversal of an award of punitive damages and attorneys’ fees after a nonjury trial, holding “[i]t is now a well-settled rule in Florida that punitive damages are not recoverable in a breach of contract action, absent an accompanying independent tort.” Id. at 223. The court reasoned that longstanding precedent and sound policy supported reversal: “As we stated in the seminal case of Griffith v. Shamrock Village, Inc., 94 So. 2d 854 (Fla. 1957), ‘The general rule is that punitive damages are not recoverable for breach of contract, irrespective of the motive of defendant. But where the acts constituting a breach of contract also amount to a cause of action in tort there may be a recovery of exemplary damages upon proper allegations and proof.’ 94 So. 2d at 858. We reaffirm the rule and its underlying policy: an unwillingness to introduce uncertainty and confusion into business transactions as well as the feeling that compensatory damages as substituted performance are an adequate remedy for an aggrieved party to a breached contract.” Lewis, 428 So. 2d at 223 (internal citations omitted).

[69] TRG Desert Inn Venture, 194 So. 3d at 520, n.5 (citations omitted).

[70] Fed. R. Civ. P. 1; Fla. R. Civ. P. 1.010.

[71] See, e.g., Jill Wieber Lens, Honest Confusion: The Purpose of Compensatory Damages in Tort and Fraudulent Misrepresentation, 59 U. Kan. L. Rev. 231, 254-60 (2011).

[72] Carol Krafka, Meghan A. Dunn, Molly Treadway Johnson, Joe S. Cecil & Dean Miletich, Judge and Attorney Experiences, Practices, and Concerns Regarding Expert Testimony in Federal Civil Trials, 8 Psychol. Pub. Pol’y & L. 309, 310 (2002) cited by David F. Herr, Ann. Manual Complex Lit. §23.1, n.1545 (4th ed.) (May 2020) (“In a survey of federal judges conducted by the Federal Judicial Center examining recent trials involving expert witnesses, tort cases represented the greatest percentage (45%) of cases reported.”).

[73] As Florida courts, including the Florida Supreme Court, have oft-recognized: “Litigation of a non-issue will always be inconvenient and entail considerable expense of time and money for all parties in the case.” Topp Telecom, Inc. v. Atkins, 763 So. 2d 1197, 1200 (Fla. 4th DCA 2000) (quoting Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097, 1100 (Fla. 1987), superseded by statute on other grounds, Fla. Stat. §768.72 (1989)). Further, “[w]hether a discovery burden is undue or excessive is usually a function of economics,” and “in the world of business and commerce” — the real world background which gives rise to these disputes — “economic success is the very purpose.” Id. (emphasis added).

[74] “Today it is far more difficult and expensive to access, search, categorize, compile, and produce relevant ESI than in traditional paper productions when a modest number of documents were organized in centralized locations.” Florida Handbook on Civil Discovery Practice 15 (2019) (“Interrogatories should be used sparingly and never to harass or impose undue burden or expense on adversaries.”), available at The Florida Bar Trial Lawyers Section, Joint Committee of the Trial Lawyers Section of The Florida Bar and Conferences of the Circuit and County Court Judges, www.floridatls.org/wp-content/uploads/2019/04/ADA-2019-Florida-Handbook-on-Civil-Discovery-Practice.pdf. The ever “spiraling cost issues of e-discovery” reinforce the need to streamline litigation in order to compensate for a growing practical barrier to Florida litigants’ ability to resolve their disputes on the merits — the evolving access to justice issue presented by a party’s capacity to afford to address the “cost and difficulty of ESI production,” which “is compounded by the need to review the production for privilege, privacy, and trade secrets before it is disclosed.” Id.

[75] Okeechobee Resorts, 145 So. 3d at 993 (internal marks omitted) (quoting and citing Cohen v. Pullman Co., 243 F.2d 725, 729 (5th Cir. 1957); LynkUs, 965 So. 2d 1161).

[76] Barakat v. Broward Cty. Housing Authority, 771 So. 2d 1193, 1195 (Fla. 4th DCA 2000) (“It is never the role of a trial court to rewrite a contract to make it more reasonable for one of the parties or to relieve a party from what turns out to be a bad bargain.”).

[77] See, e.g., Samana Inc. v. Lucena, 156 F. Supp. 3d 1373, 1373-74 (S.D. Fla. 2016) (declining application of independent tort doctrine at motion to dismiss stage); Kolmat Do Brasil, LDTA v. Evergreen United Investments, LLC, No. 14-81320-CIV, 2015 WL 3606277, at *4 n.5 (S.D. Fla. June 8, 2015) (same); Travel Blue Ltd. v. Travelpro Int’l, Inc., No. 13-81010-CIV, 2014 WL 12461375, at *5 (S.D. Fla. July 16, 2014) (same).

[78] See John Barkai, Elizabeth Kent & Pamela Martin, A Profile of Settlement, 42 Ct. Rev. 34, 34 (2006) (observing less than 3% of cases reach trial verdict).

[79] Tiara, 110 So. 3d at 409 (Pariente, J., concurring) (emphasis added).

[80] See Lewis v. Guthartz, 428 So. 2d 222, 223-24 (Fla. 1982) (“The [t]enants failed to allege an independent tort in their pleadings and the district court’s conclusion that ‘the tenants failed to allege or prove a tort committed by Guthartz which was distinguishable from or independent of his breach of contract,’ is competently supported by the record.” (citation omitted)); Elec. Sec. Sys. Corp. v. S. Bell Tel. & Tel. Co., 482 So. 2d 518, 519 (Fla. 3d DCA 1986) (affirming trial court’s dismissal of plaintiff’s tort claims at motion to dismiss stage because plaintiff failed to allege a tort independent of the breach of contract claim).

[81] See Fed. R. Civ. P. 9(b); Fla. R. Civ. P. 1.120(b).

[82] Lawrie v. Ginn Dev. Co., LLC, 656 F. App’x 464, 474 (11th Cir. 2016).

[83] See, e.g., In re Palm Beach Fin. Partners, L.P., 517 B.R. 310, 325-34 (Bankr. S.D. Fla. 2013); Rehab. Ctr. at Hollywood Hills, LLC v. Florida Power & Light Co., 299 So. 3d 16 (Fla. 4th DCA 2020).

[84] TRG Desert Inn Venture, 194 So. 3d at 520; Energy Smart Indus., LLC v. Morning Views Hotels–Beverly Hills, LLC, 660 F. App’x 859, 863 (11th Cir. 2016); Okeechobee Resorts, LLC, 145 So. 3d at 992-93, 996.

[85] LynkUs, 965 So. 2d at 1168 (“The quantum meruit claim — which is based on an implied contractual undertaking — is likewise defeated by the express agreement of the parties setting forth the limitations on their relationship….”).

 

Anthony J. Palermo

Anthony J. Palermo is a litigation partner in Holland & Knight’s Tampa office. He is also chair of The Florida Bar’s Consumer Protection Law Committee. He earned his J.D. from Harvard Law School and his B.A. from the University of North Carolina at Chapel Hill with highest distinction.

 

 

Daniel L. Buchholz Daniel L. Buchholz is a litigation associate in Holland & Knight’s Tampa office. He earned his J.D., summa cum laude, from Florida State University College of Law and his B.S. from Stony Brook University.