Case: 17-15521 Date Filed: 10/25/2018 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-15521 Non-Argument Calendar ________________________
D.C. Docket No. 8:16-cv-02526-SDM-MAP
CECELIA N. KING,
Plaintiff - Appellant,
versus
JENNIFER BENCIE,
Defendant - Appellee.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(October 25, 2018)
Before WILSON, NEWSOM, and HULL, Circuit Judges.
PER CURIAM: Case: 17-15521 Date Filed: 10/25/2018 Page: 2 of 7
Cecelia King, proceeding pro se, filed suit alleging common law fraud under
Florida law against Jennifer Bencie, the Administrator of the Florida Department
of Health, Manatee. 1 The case concerns Bencie’s offer of $100,000 per year to
King to develop an indigent-care plan for Manatee County. Specifically, King
alleges that Bencie made false statements and fraudulent misrepresentations in
recruiting King to develop the plan by stating that Bencie could “make [the
employment at a $100,000 salary] happen tomorrow under OPS” (i.e., a particular
hiring classification).
King now appeals the district court’s decision to grant Bencie’s motion for
summary judgment, contending (1) that the district court misapplied Florida’s
economic-loss rule and (2) that genuine issues of material fact remain. We agree
that the district court misapplied Florida’s economic-loss rule but nevertheless
affirm because the court correctly held that the record contains no genuine dispute
of material fact.
I
We review de novo the district court’s decision to grant Bencie’s motion for
summary judgment. Holloman v. Mail-Well Corp., 443 F.3d 832, 836 (11th Cir.
2006). Summary judgment is appropriate when the evidence, viewed in the light
most favorable to the nonmovant, presents no genuine dispute as to any material 1 Bencie removed the case to federal court based on diversity of citizenship pursuant to 28 U.S.C. § 1332.
2 Case: 17-15521 Date Filed: 10/25/2018 Page: 3 of 7
fact and compels judgment as a matter of law in favor of the movant.
Fed. R. Civ. P. 56(a); Holloman, 443 F.3d at 836. We may affirm the judgment of
the district court on any ground supported by the record, regardless of the grounds
addressed, adopted, or rejected by the district court. Walker v. Elmore Cty. Bd. of
Educ., 379 F.3d 1249, 1250 n.3 (11th Cir. 2004).
Where, as here, the nonmovant bears the burden of persuasion at trial, the
movant, in order to prevail at summary judgment, “has the burden of either
negating an essential element of the nonmoving party’s case or showing that there
is no evidence to prove a fact necessary to the nonmoving party’s case.” McGee v.
Sentinel Offender Servs., LLC, 719 F.3d 1236, 1242 (11th Cir. 2013). “If the
moving party shows an absence of evidence of a material fact, the burden of
production shifts to the nonmoving party, who must identify evidence in the record
or present additional evidence sufficient to withstand a directed verdict motion at
trial based on the alleged evidentiary deficiency.” Id. (internal quotation marks
omitted).
II
We first address King’s contention that the district court misapplied
Florida’s economic-loss rule. The district court—citing to the Florida Supreme
Court’s decision in HTP, Ltd. v. Lineas Aereas Costariccenses, S.A., 685 So. 2d
1238, 1239 (Fla. 1996)—held that “Florida’s economic-loss rule prohibits [King’s]
3 Case: 17-15521 Date Filed: 10/25/2018 Page: 4 of 7
fraud claim.” Where the economic-loss rule applies, it “sets forth the
circumstances under which a tort action is prohibited if the only damages suffered
are economic losses.” Tiara Condo. Ass’n, Inc. v. Marsh & McLennan
Companies, Inc., 110 So. 3d 399, 401 (Fla. 2013).
Though the economic-loss rule does preclude tort actions in some
circumstances, it is clear that, at least under Florida law, this is not one of them. In
2013, “reced[ing] from [its] prior rulings” to the contrary, the Florida Supreme
Court held “that the economic loss rule applies only in the products liability
context.” Id. at 407.
It may be true, as the district court recognized, that King must still allege a
tort “independent from a purported breach of contract.” We have acknowledged
that “Tiara may . . . have left intact [this] separate hurdle.” Lamm v. State St. Bank
& Tr., 749 F.3d 938, 947 (11th Cir. 2014) (citing Tiara, 110 So. 3d at 408
(Pariente, J., concurring)). Florida law, however, is still “somewhat unsettled in
this area.” Id. In any event, because—as explained below—the district court
correctly found that no genuine dispute of material fact remains, we need not
speculate on the precise boundaries of tort and contract actions under Florida law.
III
We next address whether the district court correctly held that the “record
reveals no genuine dispute of material fact.” Although we must draw all
4 Case: 17-15521 Date Filed: 10/25/2018 Page: 5 of 7
reasonable inferences in King’s favor, “[a] genuine dispute requires more than
some metaphysical doubt as to the material facts.” Hammett v. Paulding Cty., 875
F.3d 1036, 1048–49 (11th Cir. 2017) (internal quotation marks and citation
omitted). The “mere existence of a scintilla of evidence” that supports King will
not preclude summary judgment; a “genuine dispute requires that the evidence is
such that a reasonable jury could find” in her favor. Id. at 1049 (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).
King’s fraud claim requires that she prove “(1) a false statement concerning
a material fact; (2) the representor’s knowledge that the representation is false; (3)
an intention that the representation induce another to act on it; and (4) consequent
injury by the party acting in reliance on the representation.” Butler v. Yusem, 44
So. 3d 102, 105 (Fla. 2010) (quotation marks and emphasis omitted). The false
statement of material fact must generally go to a “past or existing fact.” Prieto v.
Smook, Inc., 97 So. 3d 916, 917 (Fla. Dist. Ct. App. 2012). Forward-looking
statements can constitute fraud only “if the plaintiff can demonstrate that the
person promising future action does so with no intention of performing or with a
positive intention not to perform.” Id. at 917–18 (quotation marks omitted).
The district court held that the record contains no genuine dispute of
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Case: 17-15521 Date Filed: 10/25/2018 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-15521 Non-Argument Calendar ________________________
D.C. Docket No. 8:16-cv-02526-SDM-MAP
CECELIA N. KING,
Plaintiff - Appellant,
versus
JENNIFER BENCIE,
Defendant - Appellee.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(October 25, 2018)
Before WILSON, NEWSOM, and HULL, Circuit Judges.
PER CURIAM: Case: 17-15521 Date Filed: 10/25/2018 Page: 2 of 7
Cecelia King, proceeding pro se, filed suit alleging common law fraud under
Florida law against Jennifer Bencie, the Administrator of the Florida Department
of Health, Manatee. 1 The case concerns Bencie’s offer of $100,000 per year to
King to develop an indigent-care plan for Manatee County. Specifically, King
alleges that Bencie made false statements and fraudulent misrepresentations in
recruiting King to develop the plan by stating that Bencie could “make [the
employment at a $100,000 salary] happen tomorrow under OPS” (i.e., a particular
hiring classification).
King now appeals the district court’s decision to grant Bencie’s motion for
summary judgment, contending (1) that the district court misapplied Florida’s
economic-loss rule and (2) that genuine issues of material fact remain. We agree
that the district court misapplied Florida’s economic-loss rule but nevertheless
affirm because the court correctly held that the record contains no genuine dispute
of material fact.
I
We review de novo the district court’s decision to grant Bencie’s motion for
summary judgment. Holloman v. Mail-Well Corp., 443 F.3d 832, 836 (11th Cir.
2006). Summary judgment is appropriate when the evidence, viewed in the light
most favorable to the nonmovant, presents no genuine dispute as to any material 1 Bencie removed the case to federal court based on diversity of citizenship pursuant to 28 U.S.C. § 1332.
2 Case: 17-15521 Date Filed: 10/25/2018 Page: 3 of 7
fact and compels judgment as a matter of law in favor of the movant.
Fed. R. Civ. P. 56(a); Holloman, 443 F.3d at 836. We may affirm the judgment of
the district court on any ground supported by the record, regardless of the grounds
addressed, adopted, or rejected by the district court. Walker v. Elmore Cty. Bd. of
Educ., 379 F.3d 1249, 1250 n.3 (11th Cir. 2004).
Where, as here, the nonmovant bears the burden of persuasion at trial, the
movant, in order to prevail at summary judgment, “has the burden of either
negating an essential element of the nonmoving party’s case or showing that there
is no evidence to prove a fact necessary to the nonmoving party’s case.” McGee v.
Sentinel Offender Servs., LLC, 719 F.3d 1236, 1242 (11th Cir. 2013). “If the
moving party shows an absence of evidence of a material fact, the burden of
production shifts to the nonmoving party, who must identify evidence in the record
or present additional evidence sufficient to withstand a directed verdict motion at
trial based on the alleged evidentiary deficiency.” Id. (internal quotation marks
omitted).
II
We first address King’s contention that the district court misapplied
Florida’s economic-loss rule. The district court—citing to the Florida Supreme
Court’s decision in HTP, Ltd. v. Lineas Aereas Costariccenses, S.A., 685 So. 2d
1238, 1239 (Fla. 1996)—held that “Florida’s economic-loss rule prohibits [King’s]
3 Case: 17-15521 Date Filed: 10/25/2018 Page: 4 of 7
fraud claim.” Where the economic-loss rule applies, it “sets forth the
circumstances under which a tort action is prohibited if the only damages suffered
are economic losses.” Tiara Condo. Ass’n, Inc. v. Marsh & McLennan
Companies, Inc., 110 So. 3d 399, 401 (Fla. 2013).
Though the economic-loss rule does preclude tort actions in some
circumstances, it is clear that, at least under Florida law, this is not one of them. In
2013, “reced[ing] from [its] prior rulings” to the contrary, the Florida Supreme
Court held “that the economic loss rule applies only in the products liability
context.” Id. at 407.
It may be true, as the district court recognized, that King must still allege a
tort “independent from a purported breach of contract.” We have acknowledged
that “Tiara may . . . have left intact [this] separate hurdle.” Lamm v. State St. Bank
& Tr., 749 F.3d 938, 947 (11th Cir. 2014) (citing Tiara, 110 So. 3d at 408
(Pariente, J., concurring)). Florida law, however, is still “somewhat unsettled in
this area.” Id. In any event, because—as explained below—the district court
correctly found that no genuine dispute of material fact remains, we need not
speculate on the precise boundaries of tort and contract actions under Florida law.
III
We next address whether the district court correctly held that the “record
reveals no genuine dispute of material fact.” Although we must draw all
4 Case: 17-15521 Date Filed: 10/25/2018 Page: 5 of 7
reasonable inferences in King’s favor, “[a] genuine dispute requires more than
some metaphysical doubt as to the material facts.” Hammett v. Paulding Cty., 875
F.3d 1036, 1048–49 (11th Cir. 2017) (internal quotation marks and citation
omitted). The “mere existence of a scintilla of evidence” that supports King will
not preclude summary judgment; a “genuine dispute requires that the evidence is
such that a reasonable jury could find” in her favor. Id. at 1049 (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).
King’s fraud claim requires that she prove “(1) a false statement concerning
a material fact; (2) the representor’s knowledge that the representation is false; (3)
an intention that the representation induce another to act on it; and (4) consequent
injury by the party acting in reliance on the representation.” Butler v. Yusem, 44
So. 3d 102, 105 (Fla. 2010) (quotation marks and emphasis omitted). The false
statement of material fact must generally go to a “past or existing fact.” Prieto v.
Smook, Inc., 97 So. 3d 916, 917 (Fla. Dist. Ct. App. 2012). Forward-looking
statements can constitute fraud only “if the plaintiff can demonstrate that the
person promising future action does so with no intention of performing or with a
positive intention not to perform.” Id. at 917–18 (quotation marks omitted).
The district court held that the record contains no genuine dispute of
material fact because the “unrebutted affidavits of [Assistant Director of FDOH,
Manatee] Eddie Rodriguez and Bencie evidence the truth of Bencie’s statement
5 Case: 17-15521 Date Filed: 10/25/2018 Page: 6 of 7
that she could hire King ‘tomorrow’ as an ‘OPS’ employee with a $100,000
salary.” Moreover, the court noted that “no evidence shows or suggests a
‘knowing’ falsehood or omission by Bencie.” We agree. King does not point to
any evidence in the record from which one could reasonably infer that Bencie
made the statement “with no intention of performing or with a positive intention
not to perform.” See Prieto, 97 So. 3d at 918. In fact, the opposite inference is
warranted; as King herself admitted in her deposition, Bencie worked with
Rodriguez and other FDOH employees in order to seek funding so that King could
be fully compensated. That these efforts were ultimately unsuccessful, at most,
evinces “a mere promise not performed” that, without more, “cannot form the basis
of actionable fraud” under Florida law. Biscayne Inv. Grp., Ltd. v. Guar. Mgmt.
Servs. Inc., 903 So. 2d 251, 253 (Fla. Dist. Ct. App. 2005).
To be sure, we have acknowledged that summary judgment is generally
inappropriate where the underlying issue is one of motivation or intent, as these
issues often turn on credibility determinations that should be resolved by a jury.
See McGee, 719 F.3d at 1243 (citing Slavin v. Curry, 574 F.2d 1256, 1267 (5th
Cir. 1978)). But the rule is not absolute, particularly where, as here, the record is
devoid of indicia of fraudulent intent. See id. (affirming a grant of a motion for
summary judgment because the record contained “absolutely no evidence” of a
“specific intent to deceive,” a necessary element of the nonmovant’s claim).
6 Case: 17-15521 Date Filed: 10/25/2018 Page: 7 of 7
AFFIRMED.