Bashar Atout, as Trustee of the Hmh Land Trust Dated October 29, 2013 v. Brenda Rozanc, One Source Management Solutions, Inc., Douglas W. Oswald And

Opinion

SIXTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

Case No. 6D2023-2302 Lower Tribunal No. 2021-CA-008148-O _____________________________

BASHAR ATOUT, as Trustee of the HHM LAND TRUST DATED OCTOBER 29, 2013,

Appellant,

v.

BRENDA ROZANC and ONE SOURCE MANAGEMENT SOLUTIONS, INC., et al.,

Appellees. _____________________________

Appeal from the Circuit Court for Orange County. A. James Craner, Judge.

July 31, 2026

NARDELLA, J.

Appellant, Bashar Atout, as Trustee of HHM Land Trust (“the Trust”),

appeals the trial court’s order dismissing with prejudice the Trust’s Third Amended

Complaint against Appellees, Brenda Rozanc and One Source Management

Solutions, Inc. For the reasons below, we reverse.

Atout is an investor living in Kuwait. About a decade ago, he began acquiring

rental homes in Apopka, Florida, placing legal title of the homes into a revocable

trust which he controlled as Trustee. To manage these rental homes while he was

abroad, Atout hired Brenda Rozanc (“Rozanc”) from Premier Management Group,

and when Rozanc left Premier to start her own management company, he went with her and executed an agreement with Rozanc’s new company, One Source

Management Solutions, Inc. (“One Source”). In that Management Agreement, One

Source promised the Trust that it would “manage, operate and lease” the properties

during the term of the contract.

For whatever reason, as to four of the eighteen rental homes, One Source did

not lease the homes on behalf of the Trust. Instead, it sold them without the Trust’s

knowledge or consent. One such sale Rozanc made to herself.

When Atout discovered this, the Trust filed a quiet title action and included

One Source and Rozanc as defendants. Ultimately, the Trust managed to reclaim its

legal ownership of the rental homes, allowing the Trust to pursue the attorney fees

and costs incurred in restoring its ownership and the income it lost in the interim. It

did this by adding three counts to its complaint: one for breach of contract and two

for negligence. 1

In its newly amended complaint, the Trust brought a breach of contract claim

against the only party with which it was in privity, One Source. It alleged One Source

breached the Management Agreement in several ways, including failing to manage

1 For reasons unknown, the Trust did not bring other causes of action. Nor did it ever argue that it could successfully plead other causes of action if given an opportunity to amend. Accordingly, when determining whether the Trust should have had a chance to amend, we do not consider causes of action it did not bring or that it could bring if allowed to amend its complaint. See Bocchino v. Fischer, 645 So. 2d 1096, 1097 (Fla. 4th DCA 1994) (“consideration of the motion for leave to amend should be limited to the content of the pleading and the proposed amendment” not theoretical alternatives). 2 the rental homes, failing to account for rental income, transferring rental income

without authorization, and wrongly retaining security deposits.

The Trust also brought a negligence count against One Source, in which the

Trust simply retooled its breach of contract claim. It did so by alleging that One

Source undertook a duty to manage its rental homes, without ever mentioning the

obligation was contractual, and then reiterating the same factual allegations it

previously alleged constituted breaches of contract. But this time, the Trust alleged

those actions and omissions amounted to negligence.

After setting forth functionally identical causes of action in contract and tort

against One Source, the Trust turned to Rozanc, with whom it was not in privity, and

pleaded an action in negligence. As to that claim, the Trust alleged Rozanc owed the

Trust a duty both in her role as property manager of the rental homes and as the

licensed Florida realtor who effectuated the sales. As to her culpable conduct, the

Trust attributed to Rozanc the same actions and omissions it previously charged

against One Source, as well as two additional acts of negligence: taking a real estate

commission on each sale without a written listing agreement and acting on forged

documents when she facilitated the unauthorized sales.2

In response, both One Source and Rozanc moved to dismiss the Complaint.

Beginning with the single breach of contract claim, One Source argued that an

2 The Trust also asserted claims of professional malpractice and negligence against additional defendants, Douglas W. Oswald, Esq. and his law firm, Oswald & Oswald, P.L., which are not the subject of this appeal. 3 unauthorized sale of four rental homes did not breach the Management Agreement

because the Management Agreement concerned only One Source’s leasing of the

rental homes. As the sale of the rental homes was never contemplated in the only

contract between the two parties, a cause of action based in contract could not exist.

To complement this argument, One Source and Rozanc then claimed that the mere

existence of a contract between One Source and the Trust prohibited any action in

negligence against both One Source, with which the Trust was in privity, and

Rozanc, with whom it was not. Ultimately, the trial court accepted these arguments

and further determined that “there does not appear to be a circumstance where the

issues get better, so it appears to be appropriate to grant the motion to dismiss the

third amended complaint with prejudice.”

With its claims dismissed, and thus no path to recuperate the full extent of its

losses, the Trust filed this appeal. Our review is de novo. Morin v. Fla. Power &

Light Co., 963 So. 2d 258, 260 (Fla. 3d DCA 2007) (“In reviewing an order granting

a motion to dismiss for failure to state a cause of action, the standard of review is de

novo.”).

I

In its first issue raised on appeal, the Trust argues the trial court erred in

dismissing with prejudice its breach of contract claim against One Source. We agree.

The trial court erroneously accepted the premise that, because the Management

Agreement did not specifically address the sale of the rental homes, One Source

4 could not breach the agreement by improperly selling another’s home. What that

premise ignores is that by selling the rental homes, One Source transferred control

of them and thus broke its contractual obligation to “manage, operate and lease” the

homes. Indeed, a contract need not anticipate and explicitly detail the precise

mechanism or manner of the breach for a cause of action to lie when the promising

party fails to fulfill an obligation in the contract. The contract need only identify the

obligation. See generally WSG W. Palm Beach Dev., LLC v. Blank, 990 So. 2d 708,

713 (Fla. 4th DCA 2008) (“The parties need not have contemplated the precise

injuries which occurred, as long as they could have reasonably been expected to flow

from the breach.”); see also 5 Arthur Linton Corbin, Corbin on Contracts §1010, at

79 (1964)) (“All that is necessary, in order to charge the defendant with a particular

loss, is that it is one that ordinarily follows the breach of such a contract in the usual

course of events, or that reasonable men in the position of the parties would have

foreseen as a probable result of breach. It is not necessary that the parties should

have given the matter a moment’s thought or should have expressed themselves on

the subject.”). Here, the Management Agreement obligated One Source to “manage,

operate and lease” the rental homes, and as alleged in the Complaint, One Source

failed to perform that obligation.

But even if we were to accept this faulty premise, we would still be compelled

to reverse because the Complaint identified additional provisions of the Management

Agreement that One Source breached. For example, the Complaint alleged One

5 Source failed to properly account for rental income, transferred rental income

without authorization, and improperly retained security deposits. All three of these

specific breaches matched specific obligations listed in the Management Agreement.

Yet the trial court dismissed the Trust’s breach of contract claim with prejudice. This

was error and reversal is warranted.

II

In its second issue raised on appeal, the Trust argues the trial court erred in

dismissing with prejudice its negligence claim against One Source. As to this

contention, we disagree.

We begin our analysis of the Trust’s negligence claims against One Source by

making a simple observation: Although they share a common origin, 3 tort law and

contract law address distinct obligations in modern society. As explained by English

legal scholar Patrick Atiyah:

For at least 100 years—and in many respects for more like twice that time—common lawyers have operated within a particular conceptual framework governing the law of obligations. Within this framework, the fundamental distinction has been that between obligations which are voluntarily assumed, and obligations which are imposed by law. The former constitutes the law of contract, the latter fall within the purview of the law of tort.

3 The common law of contract and tort both evolved from the writ of assumpsit. See generally A. Simpson, A History Of The Common Law Of Contract: The Rise Of Assumpsit 199 (1975).

6 Patrick Atiyah, Contracts, Promises and the Law of Obligation, 94 L.Q. Rev. 193

(1978).

When a party fails to fulfill obligations it voluntarily assumed, the remedy lies

in the law of contract, and that remedy traditionally tends toward restoring the

aggrieved party’s expectations through compelled performance or contemplated

damages. 4 In contrast, when a party fails to fulfill obligations imposed by law, the

remedy lies in the law of tort, which attempts to return the victim to his pre-injury

position and compensates him for actual harm sustained.

As a result, tort remedies—free of the obstacles and limitations a contract may

impose—are sometimes more desirable in the eyes of the aggrieved party. 5 And as

outcomes tend to follow incentives, aggrieved parties have long sought to bring

4 We recognize that modern contract law also provides for consequential damages at times. Hadley v. Baxendale, 9 Ex. 341, 156 Eng. Rep. 145 (1854), is the leading common law case on liability for consequential damages caused by failure or delay in carrying out a commercial undertaking. The rule of Hadley v. Baxendale– that consequential damages will be awarded only if the defendant was put on notice of the special circumstances giving rise to them–has long been applied in Florida. W.U. Tel. Co. v. Taylor, 94 Fla. 841, 846, 114 So. 529, 531 (1927) (“This court has repeatedly approved the doctrine announced in Hadley v. Baxendale.”); Scott v. Rolling Hills Place Inc., 688 So. 2d 937, 940 (Fla. 5th DCA 1996) (explaining that “[d]amages which flow naturally from the breach, and were foreseeable by the breaching party at the time the contract was entered, are recoverable.”). 5 See generally Alejandre v. Bull, 153 P. 3d 864, 874 (Wash. 2007) (Chambers, J., concurring) (“Tort remedies are often, perhaps always, significantly larger than contract remedies.”); Grams v. Milk Prods., Inc., 699 N.W. 2d 167, 171 (Wis. 2005) (“Tort law generally offers a ‘broader array’ of damages than contract.”).

7 actions in tort, even where the relationship with the wrongdoer is born of a contract

and the resulting injury, a pure economic loss, is sustained from a failure to properly

perform a contractual obligation. The result is that without any limitation, the law of

contract and the societal good it serves 6 is at risk of being swallowed by a sea of tort.

See G. Gilmore, The Death of Contract, 87–94 (1974). In response to this risk,

judicially created boundary doctrines emerged, including the economic loss rule and

the independent tort doctrine. Palmeri, John M. and Barnett, Monty L. (1996) The

Continuing Vitality of the Economic Loss Rule, Land & Water L. Rev.: Vol. 31: Iss.

2, pp. 757–73 (explaining that the economic loss rule finds its roots in the English

common law which generally defined legal duties in terms of contractual

relationships. With the gradual expansion of tort law, the rule was developed in an

effort to define the outer limits of tort liability); Danielle Sawaya, Not Just for

Products Liability: Applying the Economic Loss Rule Beyond Its Origins, 83

Fordham L. Rev. 1073, 1097–1102 (2014) (explaining the importance of the

economic loss rule in contractual privity cases to protect the boundary between tort

and contract). In modern times, it appears that every jurisdiction in the United States

has some form of the economic loss rule or independent tort doctrine. Margaret

6 Contract law allows consenting parties to allocate risk in a bargained-for exchange. Economic philosophers Adam Smith and John Stuart Mill believed that the freedom to contract not only contributed certainty and stability in the marketplace, but “[w]as the fundamental and indispensable requisite of progress.” Samuel Williston, Freedom of Contract, 6 Corn. L. Q. 365, 366 (1921).

8 Wykowski, Comment, Clarifying Washington’s Approach to the Independent Duty

Doctrine, 95 Wash. L. Rev. 1091, 1096 (2020). In other states, the economic loss

rule is considered by some to be the strongest judicially created boundary. Mark A.

Geistfeld, The Contractually Based Economic Loss Rule in Tort Law: Endangered

Consumers and the Error of East River Steamship, 65 DePaul L. Rev. (2016).

Florida courts once routinely applied this rule, which rule was premised on

the definition of economic loss, and defined by the Florida Supreme Court as

“damages for inadequate value, costs of repair and replacement of the defective

product, or consequent loss of profits—without any claim of personal injury or

damage to other property.” Tiara Condo. Ass’n v. Marsh & McLennan Cos., Inc.,

110 So. 3d 399, 401 (Fla. 2013) (quoting Casa Clara Condo. Ass’n, Inc. v. Charley

Toppino & Sons, Inc., 620 So. 2d 1244, 1246 (Fla. 1993)).

With a focus on the nature of the loss, the rule in Florida evolved beyond the

product liability realm to protect the contract by forbidding parties in privity from

suing in tort to recover pure economic losses. Id. Under this widely accepted

evolution 7 of the rule, parties were effectively prevented “from circumventing the

allocation of losses set forth in the contract by bringing an action for economic loss

in tort.” Id. at 402 (quoting Indem. Ins. Co. of N. Am. v. Am. Aviation, Inc., 891 So.

7 This iteration of the rule is sometimes known as the contractual privity branch of the economic loss rule.

9 2d 532, 536 (Fla. 2004)). 8 But this was not to last in Florida. In 2013, the Florida

Supreme Court abolished the previously embraced contractual privity branch of the

economic loss rule in Tiara. Id. at 399. 9 But while the formal rule was abolished, the

Tiara court itself debated the effect of its decision, with Justice Canady asserting

that it represented a sea-change in the law and Justice Pariente claiming that not

much had changed at all. Id. at 409, 414 (Pariente, J. concurring) (Canady, J.

dissenting). Justice Pariente defended Tiara against the charge that it expanded

viable tort claims, by stating that other basic common law principles already

protected the boundary between tort and contract. Id. at 408 (Pariente, J. concurring).

And it is this concurrence that many have seen as a reference to another boundary

doctrine, the independent tort doctrine, which prohibits a plaintiff from recovering

in tort for a contract dispute unless the tort is independent of any breach of contract.

8 Many states, including Florida, recognized exceptions to this strict rule. Most notably, those injured by incompetence could still pursue professional malpractice claims in tort, despite the existence of a contract between the professional and the plaintiff. Moransais v. Heathman, 744 So. 2d 973, 983 (Fla. 1999) (“While provisions of a contract may impact a legal dispute, including an action for professional services, the mere existence of such a contract should not serve per se to bar an action for professional malpractice.”). 9 This decision came to be because the Eleventh Circuit, “consistent with its understanding that Florida had adopted a contractual privity economic loss rule, certified to the Florida Supreme Court the question whether an insurance broker is a ‘professional’ subject to a carveout from the economic loss rule.” Catherine M. Sharkey, In Search of the Cheapest Cost Avoider: Another View of the Economic Loss Rule, 85 U. Cin. L. Rev. 1017, 1037 (2018). But the Florida Supreme Court changed the certified question, asking instead whether the economic loss rule applies outside the realm of products cases and answered that question in the negative.

10 Id. at 408 (Pariente, J. concurring); see also Peebles v. Puig, 223 So. 3d 1065, 1068

n.4 (Fla. 3d DCA 2017) (Our sister court, in a footnote, makes clear it did not

evaluate the case under the economic loss rule, and in stating as much, affirmed the

existence of the independent tort doctrine.); Certain Underwriters at Lloyd’s of

London, UK Subscribing to Pol’y No. B1230AP56189A14 v. Ocean Walk Resort

Condo. Ass’n, Inc., No. 616CV258ORL37GJK, 2017 WL 3034069, at *10 (M.D.

Fla. July 18, 2017) (comparing two decisions from U.S. Court of Appeals for the

Eleventh Circuit discussing the application of Justice Pariente’s concurrence in

Tiara: Lamm v. State St. Bank & Tr., 749 F. 3d 938, 947 (11th Cir. 2014), which

stated that, despite the limitation of the economic loss rule in Tiara, the decision may

“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 Lookout Mountain Wild

Animal Park, Inc. v. Stearns Zoological Rescue & Rehab Ctr., Inc., 553 Fed. App’x.

864, 866 (11th Cir. 2014), in which the court cited Justice Pariente’s concurrence in

support of its conclusion that the plaintiff had not identified any tortious acts

sufficiently independent of the alleged breach of contract to render the tort claims

viable).

Following Tiara, Florida courts have required that tort claims brought

between parties in contractual privity be “independent” of any breach of contract,

and we join them now in that requirement. See Kenny v. Everlong, LLC, 398 So. 3d

418 (Fla. 4th DCA 2024); see also Island Travel & Tours, Ltd., Co. v. MYR Indep.,

11 Inc., 300 So. 3d 1236, 1239 (Fla. 3d DCA 2020) (courts continue to apply the

independent tort doctrine to prevent plaintiffs from recovering in tort what is

essentially a contract dispute); Marian Farms, Inc. v. Suntrust Banks, Inc., 135 So.

3d 363, 363 (Fla. 5th DCA 2014) (finding a basis for liability against the bank based

on an independent duty owed to the plaintiff distinct from the depository agreement).

And when applying Florida law, federal courts have followed suit. Cont’l Gen. Ins.

Co. v. Gardina, 773 F. Supp. 3d 1294, 1299–300 (M.D. Fla. 2025) (explaining that

while it was initially uncertain whether the independent tort rule had survived the

Tiara decision, in the years since Tiara, the Eleventh Circuit and the district courts

have continued to apply Florida’s independent tort rule.). We note however that, as

of yet, no precise, universal test exists for distinguishing an “independent” tort. See

generally Lamm, 749 F. 3d at 947 (“exact contours of [the independent tort rule], as

applied post-Tiara, are still unclear”). While some courts search for the source of

duty, others compare conduct, and still others analyze the nature of damages sought.

The variety of considerations has generated several formulations which to date elude

a single canonical rule that the bench and bar can easily apply in every court across

the state. Because each consideration has value as an indicator of independence, we

review them now, as well as a carryover consideration from the old economic loss

rule—public policy.

12 1.

Unlike claims that rely on contractual relationships, an “independent” tort is

often characterized by a duty imposed by law rather than by agreement. As to this

consideration, United States District Court Judge Steven Merryday has explained

that the independent tort doctrine honors the same divide as the economic loss rule,

but rather than looking at the nature of the loss, it focuses on the source of the duty

allegedly breached. “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.” Travelers Indem. Co. of Conn. v. Richard McKenzie &

Sons, Inc., 326 F. Supp. 3d 1332, 1345 (M.D. Fla. 2018), aff’d, 10 F.4th 1255 (11th

Cir. 2021). Following this reasoning, courts should consider whether the alleged

breach of a duty in tort coincides or overlaps with a duty imposed by a contract. If

the duty at issue is within the scope of a contract, and the relationship of the parties

that led to the creation of that duty stems from a contract, then that duty’s source is

from contract and any alleged tort claims based on a breach of those duties may not

be “independent.”

But the analysis may not end there, as “independent” torts can be

characterized by “other conduct” and distinct damages. The “other conduct”

consideration requires that for a tort claim to exist alongside a breach of contract,

the tort must arise from acts independent of the contract’s breach. XP Glob., Inc. v.

AVM, L.P., No. 16-cv-80905, 2016 WL 4987618, *4, *6 (S.D. Fla. Sept. 19, 2016).

13 It requires proof of facts separate and distinct from the contract breach. Invo Fla.,

Inc. v. Somerset Venturer, Inc., 751 So. 2d 1263, 1265 (Fla. 3d DCA 2000). In other

words, under this consideration, the bad conduct serving as the predicate for the

breach of contract claim must go beyond a failure to comply with the contract.

Frutafino, S.A.S. v. Dole Chile, S.A., 405 So. 3d 497, 500 (Fla. 3d DCA 2025); see

also Elec. Sec. Sys. Corp. v. S. Bell Tel. & Tel. Co., 482 So. 2d 518, 519 (Fla. 3d

DCA 1986) (“[A] breach of contract, alone, cannot constitute a cause of action in

tort. . . . It is only when the breach of contract is attended by some additional conduct

which amounts to an independent tort that such breach can constitute negligence.”).

Finally, in some circumstances, the nature of the loss may also be of guidance,

as the nature of the loss often informs whether society has imposed an “independent”

duty. Peebles, 223 So. 3d at 1068 (considering the nature of the loss in evaluating

whether the alleged tort is independent). While Tiara abolished the perhaps overly

simplistic contractual privity branch of the economic loss rule, the remaining

independent tort doctrine should still consider the nature of the harm at issue as an

indication of whether the claim asserted is truly independent of a contract or is

simply a recasting of a contract action into a tort action.

With most broken contracts, injuries are measured in the harm to a party’s

economic interests, not in the harm to a party’s person or property. When claims in

tort are brought seeking identical damages to those available by contract and are

clearly economic in nature, that is a strong indicator that the alleged tort claims are

14 not “independent.” Peebles, 223 So. 3d at 1069. Conversely, when claims are

brought in tort seeking damages for personal injury or other non-economic damages,

that is a strong indicator that some independent duty is at stake. 10 While the nature

of the damages is no longer a per se rubric after Tiara, their nature is still relevant in

determining whether the tort claim brought is truly independent of a related contract.

Island Travel & Tours, Co., 300 So. 3d at 1240 n.7.11 For those reasons, courts

should continue to consider the nature of the damages sought.

In the end, beyond examining duty, conduct, and damages, one last overriding

consideration must be addressed—public policy. Because there are some duties

which the law will not allow a party to avoid by contract, the old economic loss rule

prohibited some torts from being dismissed when public policy forbade dismissal.

For example, professionals who negligently performed a contracted-for service were

10 Consider the following example as to the indicative nature of damages. A daycare negligently allows a child to come to harm. Those damages are decidedly non-economic. But the source of the daycare’s obligation is contractual, and the conduct complained of certainly qualifies as a broken promise to the parents who entrusted the child to the daycare. But even though the conduct complained of breaches the contract, it is also a breach of other duties imposed under the law which are truly independent of the contract and often immutable regardless of a specific contract’s attempts to waive or assume risk. Examining the nature of damages in this example more clearly illustrates the independence of the underlying tort. 11 One benefit to the contractual privity branch of the economic loss rule was the simplicity in looking at the type of damages as the rubric. See generally Judge Lisa T. Munyon and Judge Alice L. Blackwell, Tort and Contract Actions: Strange Bedfellows No More In The Wake of Tiara Condominium, Fla. B.J., Dec. 2013, at 41.

15 still liable in tort for malpractice. Moransais, 744 So. 2d at 983 (“While provisions

of a contract may impact a legal dispute, including an action for professional

services, the mere existence of such a contract should not serve per se to bar an action

for professional malpractice.”). That is so because, despite recognizing the parties’

general freedom to set the boundaries of their duties and rights voluntarily, courts

across the country, including the Florida Supreme Court, determined that such

freedom was not absolute and created certain exceptions to the old economic loss

rule born out of public policy considerations. Those previously identified exceptions,

should be honored under the independent tort doctrine.

2.

Applying these considerations to the Trust’s negligence claim against One

Source confirms the trial court’s finding that it is a “dependent” tort, because

whether one considers the source of the duty, the nature of the conduct and damages,

or public policy, the negligence claim is not independent. The Complaint alleges

One Source voluntarily contracted for the obligation of operating and leasing

fourteen rental homes and then delegated the performance of that obligation to its

employee Rozanc. The duty to manage, operate and lease the rental homes stemmed

from the Management Agreement and not from some duty imposed by society. The

16 Trust attempts to recast their claim under a theory of general negligence, and no

other tort is alleged. 12

The allegations in the negligence claim are simply that One Source and

Rozanc owed a general duty of care to the Trust. As the duty is obviously generated

by the Management Agreement, it was incumbent upon the Trust to plead a factual

basis to support a general duty independent of any contractual obligation. 13 Failing

to do so here dooms the Trust’s negligence claim against One Source.

Turning to conduct, the Trust does not articulate any “other conduct” which

amounts to anything that would not also be a breach of contract. The major purpose

of the Management Agreement was to entrust care of the properties to someone else,

and to ensure that such care was possible, One Source and Rozanc were entrusted

with the legal power to control the properties. The powers and duties of One Source

and Rozanc stem from the Management Agreement and its related documents, and

12 For example, the Trust does not allege that One Source or Rozanc are professionals or that they are governed by independent bailment duties or other statutory, regulatory, or policy impositions. 13 To the extent the Trust is relying on the undertaker’s doctrine, we note two things. First, the doctrine subjects one to liability for physical harm that results, which is not the case here. Wallace v. Dean, 3 So. 3d 1035, 1052 (Fla. 2009); see also Muchnick v. Goihman, 245 So. 3d 978, 981 (Fla. 3d DCA 2018) (once the real estate agent made the promise to fix the problems in the apartment, and managed the repairs, he had a duty through the undertaker’s doctrine to exercise reasonable care in making the repairs). Second, to allow an obligation voluntarily assumed by contract to also create an obligation imposed by society because it was “undertaken” would render the independent tort doctrine obsolete.

17 the conduct at issue is a complaint that One Source broke its contractual promise to

manage and care for the properties. Because One Source’s alleged tortious conduct

is the same bad conduct that serves as the predicate for the breach of contract claim,

the tort is not independent under this consideration either.

Additionally, the damages pled in the Trust’s negligence claim are economic

in nature and the nature of damages sought in tort is identical to the nature of the

damages sought in contract, namely the return of, or the value of, the properties, the

lost rent, etc. There is no allegation of personal injury, or even of physical injury to

the properties. While improperly selling someone’s property is an injury, it is an

economic injury and for that reason is more properly considered part and parcel of

the parties’ economic relationship as governed by their contract, not a physical injury

or extra-contractual injury often independently governed by society’s many other

imposed duties. This factor also points to the negligence claim being “dependent”

on the Management Agreement.

As to the final consideration, the Trust does not identify any broader societal

interest previously recognized as sufficient to override the application of a boundary

doctrine that, if enforced, would preclude the tort claim. And it is obvious here that

none exists. Travelers Indem. Co. of Conn., 326 F. Supp. 3d at 1346 (explaining that

although society imposes a tort duty on a doctor or a lawyer, for example, to perform

non-negligently the duties for which they have contracted with a patient or client,

society has not imposed such a duty on nonprofessionals.). Contracting with a real

18 estate management company to manage real property is much different than

contracting with a professional engineer to design a suspension bridge that thousands

will use every day or signing an exculpatory clause in favor of a commercial

company offering children the opportunity to experience risky adventures. 14 See

generally Green Hills (USA), L.L.C. v. Aaron Streit, Inc., 361 F. Supp. 2d 81, 90

(E.D.N.Y. 2005) (examining several public policy reasons for exempting

professional malpractice claims from the reach of boundary doctrines, including that

the nature of the work performed by professionals, creates a “significant public

interest, and the breach of those duties could have dramatic consequences.”). As

there is no previously recognized reason for depriving the parties in this appeal from

the ability to allocate risk in a bargained-for exchange and, also of importance,

because the party that seeks to bring the tort claim has never identified a previously

14 Another example where public policy may limit freedom of contract involves minors. See generally Applegate v. Cable Water Ski, L.C., 974 So. 2d 1112, 1114 (Fla. 5th DCA 2008) (exculpatory clause in contract signed by parents could not be enforced by a commercial enterprise to the determinant of an injured minor). Based on public policy concerns, in 2008 the Florida Supreme Court found unenforceable a pre-injury release executed by a father on behalf of his minor son because it prevented the minor’s estate from bringing a cause of action against the commercial establishment that provided the activity which resulted in the minor's death. Kirton v. Fields, 997 So. 2d 349, 358 (Fla. 2008). Since then, the legislature passed a statute to limit Kirton’s holding by permitting parents to release a commercial activity provider for a child’s injuries occurring as a result of the inherent risk of the activity under certain circumstances. See § 744.301(3) Fla. Stat. (2010).

19 recognized public policy interest that would override the application of the

independent tort doctrine, this consideration is of no moment in this case.

In the end, while a test for every case is difficult to capture in a single formula,

reviewing our sister courts’ considerations of duty, conduct, damages, and public

policy can help distinguish an “independent” tort from a “dependent” tort. While in

this case all of the considerations point towards dismissal of the Trust’s negligence

action, we do not imply that these considerations are anything other than indicators

which must be examined in the totality of the circumstances. Based on these

considerations, we affirm the trial court’s dismissal of the Trust’s negligence action

against One Source.

III.

In its final issue raised on appeal, the Trust argues the trial court erred in

dismissing with prejudice its negligence claim against Rozanc, who was tasked with

carrying out One Source’s duties under the Management Agreement. Having found

the independent tort doctrine bars a tort claim against One Source, we hold that

officers and employees, such as Rozanc, are similarly shielded when their liability

in tort arises solely from the deficient performance of their employer’s contractual

duty.

As the Fifth District recognized in Vesta Construction & Design, L.L.C. v.

Lotspeich & Assocs., Inc., “when a suit is barred against a corporation by the

contractual privity economic loss rule, the contracting party cannot bypass the rule

20 by suing corporate employees.” 974 So. 2d 1176, 1180 (Fla. 5th DCA 2008). “Given

that a corporation can only act through its employees, it would completely

undermine the contractual privity economic loss rule to allow any party which

contracts with a corporation to avoid the rule by simply bringing its tort claim

directly against the corporate officers or employees tasked with performing the

contract on behalf of the corporation.” Id.

While some have questioned the continued validity of Vesta Construction,

treating the opinion as a relic of the bygone doctrine abolished in Tiara, we find its

logic applies with equal force to the independent tort doctrine. See generally

IdentiRx, LLC v. Pharm. Project Sols., Inc., No. 2:25-CV-480-SPC-DNF, 2025 WL

2732852, at *3 (M.D. Fla. Sept. 25, 2025).

The economic loss rule and independent tort doctrine are both boundary

doctrines, and both must shield corporate officers and employees tasked with

performing the contract on behalf of the corporation for the boundary to survive.

Limiting the scope of independent tort doctrine to signatories when the party to the

contract is a corporation would allow plaintiffs to bypass the bargained-for risk

allocations in a contract. To maintain the integrity of the independent tort doctrine,

we adopt Judge Lawson’s well-reasoned decision in Vesta Construction, and hold

that although Rozanc is not personally in privity, the independent tort doctrine still

21 shields her from liability from torts which arise solely from her negligent

performance of the Management Agreement as an employee. 15

In so holding, we recognize the Fourth District, under different facts involving

a corporate officer’s fraudulent representations, stated that the independent tort

doctrine does not shield officers and employees who are not a party to the agreement.

Costa Invs., LLC v. Liberty Grande, LLC, 353 So. 3d 627, 632 (Fla. 4th DCA 2022)

(citing Un2JC Air 1, LLC v. Whittington, 324 So. 3d 1, 3 (Fla. 4th DCA 2021))

(“This principle only applies, however, to the parties to the contract.”). But our case,

as pled, does not concern fraudulent representations, and the distinction makes a

difference because the facts set forth in Costa suggest the tort was already

independent, obviating any need for the Costa court to declare that the protection

provided by the independent tort doctrine was strictly limited to signatories.

Recognizing though the inherent tension between the pure privity requirement stated

in Costa and the rationale for protecting a boundary doctrine set forth in Vesta

Construction, we ask for the Florida Supreme Court’s guidance in determining the

proper test and reach of Florida’s independent tort doctrine.

Based on the foregoing, we affirm in part and reverse in part, remanding only

for the Trust’s breach of contract claim against One Source to proceed. We also

15 We do not reach whether or not the Trust could have brought other torts that would be independent. We react only to what was pled here. 22 certify two questions of great public importance, both of which we passed upon in

this decision. Fla. R. App. P. 9.030(a)(2)(A)(v).

CERTIFIED QUESTIONS:

1) IN APPLYING THE INDEPENDENT TORT DOCTRINE, HOW SHOULD COURTS DISTINGUISH AN “INDEPENDENT” TORT FROM A “DEPENDENT” TORT?

2) DOES THE INDEPENDENT TORT DOCTRINE SHIELD OFFICERS AND EMPLOYEES WHO ARE NOT A PARTY TO A CONTRACT WHEN THEIR LIABILITY IN TORT ARISES SOLELY FROM THEIR DEFICIENT PERFORMANCE OF A CONTRACTUAL DUTY ASSUMED BY A CORPORATION THAT WAS A PARTY TO THE CONTRACT AND ON WHOSE BEHALF THEY WERE ACTING?

AFFIRMED in part; REVERSED and REMANDED in part; QUESTIONS CERTIFIED.

WOZNIAK and BROWNLEE, JJ. concur.

Ronald M. Gaché and Scott A. Simon, of LOGS Legal Group, LLP, Boca Raton, for Appellant.

Eric P. LaRue, II, and Cristina A. Cantillana Tapia, of The LaRue Firm, PLLC, Winter Park, for Appellees, Brenda Rozanc and One Source Management Solutions, Inc.

No Appearance for Other Appellees.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF TIMELY FILED