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1

 As noted in the Fifth Report and Recommendation, doc. 52, Plaintiffs jointly

raise six tort claims for breach of fiduciary duty, negligence, gross negligence, tortious

interference, wrongful dishonor, and tortious infliction of emotional distress. Plaintiff

Hansson has a separate claim for breach of contract.

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

CHARLIE BURKE, 

JENNY HANSSON, 

d/b/a CHERRY PEPPERS,

Plaintiffs,

vs. Case No. 5:03cv182-MCR/WCS

CHARLES E. COOKE, 

and G. EDWARD COOKE,

Defendants.

 /

SIXTH REPORT AND RECOMMENDATION

On March 17, 2005, the pro se Plaintiffs were ordered to file a more definite

statement in support of each of their six state law tort claims. Doc. 77. In doing so,

Plaintiffs were advised as to why their previously filed statement, doc. 63, was

insufficient.1

 Plaintiffs were explicitly directed to provide an organized statement of the

facts which support each of their claims. Doc. 77. The order further explained to

Plaintiffs that the more definite statement must "provide headings for each of the tort

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Case No. 5:03cv182-MCR/WCS

claims they bring in this case and, below each heading, Plaintiffs shall provide factual

allegations to support each claim." Id., at 4. That was a straight-forward and simple

direction. Plaintiffs have not fully complied with that order, and their more definite

statement, doc. 82, is insufficient to provide the factual basis for the claims Plaintiffs

attempt to allege. 

There is no need for additional argument from Defendants on these tort claims,

considering the clear direction given to Plaintiffs. This was the second opportunity to

submit a proper more definite statement. See docs 52, 62, 77, and 78. This report and

recommendation is entered sua sponte concerning Plaintiffs' more definite statement of

the state law tort claims. 

Breach of Fiduciary Duty

Plaintiffs state:

Elements of are, [sic] the existence of a fiduciary relationship. A breach fo duty

own by the fiduciary to the plaintiffs. Harm to the plaintiffs. The actions of the

defendants listed below show that defendants have breached both contractual

and fiduciary duties.

Doc. 82, p. 2. This is inadequate. Plaintiffs were not directed to provide the legal

elements of the cause of action. Plaintiffs were ordered to state the facts which support

their claim. Plaintiffs did not present any factual statements under this heading. Thus,

Plaintiffs have failed to allege how any Defendant occupied a fiduciary relationship to

the Plaintiffs; what duty was owed to the Plaintiffs as a result of, or through the terms of,

such a relationship; how that duty was breached; when the duty was breached; and the

harm suffered by Plaintiffs as a result of the breach. This claim is insufficient on its face

and cannot succeed. This claim should be dismissed.

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A fiduciary relationship must be more than a simple contractual relationship. A

fiduciary relationship is "based on trust and confidence between the parties where

'confidence is reposed by one party and a trust accepted by the other, . . . . ' " See

Taylor Woodrow Homes Florida, Inc. v. 4/46-A Corp., 850 So.2d 536, 540 (Fla. 5th DCA

2003), citing Doe v. Evans, 814 So.2d 370, 374 (Fla. 2002); see also Maxwell v. First

United Bank, 782 So.2d 931, 933 (Fla. 4th DCA 2001). "To establish a fiduciary

relationship, a party must allege some degree of dependency on one side and some

degree of undertaking on the other side to advise, counsel, and protect the weaker

party." Watkins v. NCNB Nat'l Bank of Fla., N.A., 622 So.2d 1063, 1065 (Fla. 3d DCA

1993), review denied, 634 So.2d 629 (Fla. 1994), quoted in Taylor Woodrow Homes

Florida, Inc., 850 So.2d at 540-41. 

Plaintiffs allege no facts to show that they are or were dependent on Defendants

for advice, counsel, or protection, or that Defendants undertook such a responsibility. 

Watkins v. NCNB Nat. Bank of Florida, N.A., 622 So.2d 1063, 1065 (Fla. 3rd DCA

1993), citing Bankest Imports, Inc. v. Isca Corp., 717 F.Supp. 1537, 1541 (S.D.

Fla.1989). Plaintiffs have only alleged that they engaged in a business relationship with

Defendants as equals. The claim for breach of a fiduciary duty should be dismissed.

Negligence, Gross Negligence

Plaintiffs attempted to combine their second and third claims into this one

heading. That does not comply with the court order. These are two separate claims

and require separate factual allegations. 

Moreover, Plaintiffs' allegedly more definite statement under this heading

provides only the following:

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Case No. 5:03cv182-MCR/WCS

The elements of negligence are a duty the defendant owes the plaintiff, a breach

of that duty, a causal connection between the breach and the plaintiff's injury,

and actual injury. Defendants actions listed below show negligence, and the

continued actions of defendants constitute Gross Negligence.

Doc. 82, p. 3. Again, Plaintiffs fail to provide the factual allegations in support of these

claims.

Gross negligence and ordinary negligence are separate claims with different

standards. Gross negligence is shown "by facts evincing a reckless disregard of human

life or rights which is equivalent to an intentional act or a conscious indifference to the

consequences of an act." John Hancock-Gannon Joint Venture II v. McNully, 800 So.2d

294, 297 (Fla. 3d DCA 2001), citing Rupp v. Bryant, 417 So.2d 658, 670 (Fla. 1982). 

Gross negligence must be a "a conscious and voluntary act or omission which is likely

to result in grave injury when in the face of a clear and present danger of which the

alleged tortfeasor is aware. . . ." Weller v. Reitz, 419 So.2d 739, 741 (Fla. 5th DCA

1982), quoting Glaab v. Caudill, 236 So.2d 180 (Fla. 2d DCA 1970). Florida law

requires circumstances which constitute "imminent or clear and present danger," a

standard rising above "normal peril." Fla. Jur. 2d, Negligence § 5. 

Plaintiffs have not alleged danger above normal peril. Plaintiffs only alleged that

Defendants continued their actions. This is insufficient to state a claim for gross

negligence. The claim for gross negligence should be dismissed.

As acknowledged by Plaintiffs in their more definite statement, doc. 82, there are

four elements of a negligence claim: (1) a legal duty owed by defendant to plaintiff, (2)

breach of that duty by defendant, (3) injury to plaintiff legally caused by defendant's

breach, and (4) damages as a result of the injury. Paterson v. Deeb, 472 So.2d 1210,

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1214 (Fla. 1st DCA 1985), cited in Meyers v. City of Jacksonville, 754 So.2d 198, 202

(Fla. 1st DCA 2000). Plaintiffs have not alleged the duty owed to them by Defendants. 

They have not stated how or when the unidentified duty was allegedly breached, and

they have not alleged facts showing a causal connection between the breach and injury

suffered by Plaintiffs. The ordinary negligence claims should also be dismissed.

Tortious Interference with a Business Relationship

Plaintiffs have alleged several facts in support of this fourth claim. They allege

that Defendants intentionally interfered with their business and did not enforce

"contracts with tenants competing for business with Cherry Peppers." Doc. 82, p. 3. 

Plaintiff assert that Defendants did not maintain pest control on the premises, did not

maintain a common tenant sign, allowed a dumpster to be placed near the front of the

building, and did not require another tenant restaurant in the building to comply with

terms of that tenant's lease. Id., at 3. Plaintiffs also suggest that Defendants allowed

the other restaurant, Cattle Company, to operate even though it was a year behind in

rent payments in the hopes "that Cattle Company would run Cherry Peppers out of

Business." Id., at 4. Plaintiffs contend that, at the least, Defendants gave Cattle

Company restaurant preferential treatment. Id. 

The elements of tortious interference with a business relationship are: "(1) the

existence of a business relationship, not necessarily evidenced by an enforceable

contract; (2) knowledge of the relationship on the part of the defendant; (3) an

intentional and unjustified interference with the relationship by the defendant; and (4)

damage to the plaintiff as a result of the breach of the relationship." Tamiami Trail

Tours, Inc. v. Cotton, 463 So.2d 1126, 1127 (Fla. 1985); see also Restatement

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2

 "Under Florida law, a cause of action for tortious interference does not exist

against one who is himself a party to the business relationship allegedly interfered with." 

Ethyl Corp. v. Balter, 386 So.2d 1220 (Fla. 3d DCA 1980), review denied, 392 So.2d

1371 (Fla.), cert. denied, 452 U.S. 955 (1981), relied on in Genet Co. v.

Annheuser-Busch, Inc., 498 So.2d 683, 684 (Fla. 3d DCA 1986). Thus, Plaintiffs have

no claim that Defendants interfered with their business relationship with Plaintiffs.

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(Second) of Torts § 766 (1979), quoted in Ellis Rubin, P.A. v. Alarcon, 892 So.2d 501,

503 (Fla. 3d DCA 2004), reh'g denied (Feb. 23, 2005).2 

In Florida, a plaintiff may properly bring a cause of action alleging tortious

interference with present or prospective customers but no cause of action

exists for tortious interference with a business's relationship to the

community at large. Southern Alliance Corp. v. Winter Haven, 505 So.2d

489, 496 (Fla. 2d DCA 1987). As a general rule, an action for tortious

interference with a business relationship requires a business relationship

evidenced by an actual and identifiable understanding or agreement which

in all probability would have been completed if the defendant had not

interfered.

Ethan Allen, Inc. v. Georgetown Manor, Inc., 647 So.2d 812, 815 (Fla. 1995) (emphasis

added), answer to certified question conformed to 47 F.3d 1099 (11th Cir. 1995).

Plaintiffs here do not identify any particular business relationship with which

Defendants interfered. Plaintiffs merely assert that Defendants interfered with Plaintiffs

opportunity effectively to operate their business. This is not sufficient. There is no claim

as to "interference with a business's relationship to the community at large." 647 So.2d

at 815. 

Plaintiffs also allege that Defendants failed to maintain the premises and were

helping another restaurant by selectively enforcing terms of a contract between

Defendants and that restaurant. This does not establish the necessary interference

between Plaintiffs' business and a particular relationship with a third party. Plaintiffs do

not identify any third party with whom they had an "actual and identifiable understanding

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or agreement which in all probability would have been completed if the defendant had

not interfered." Id. Thus, as a matter of law this claim should be dismissed.

Wrongful Dishonor

Plaintiffs allege that during January and February, 2002, Defendants "had rent

checks in there [sic] possession and had cashed February rent check before sending

letter threatening eviction . . . ." Doc. 82, p. 4. Plaintiffs suggest this was done to

intimidate Plaintiffs in conjunction with a March, 2004, state court case involving

Plaintiffs and Defendants. Id., at 4. Plaintiffs state that they "assert the charge of

Wrongful Dishonor because Defendant Cook and Grace failed to honor said

instruments." Id. It is apparent from this that the "rent checks" in question were written

by Plaintiffs, payable to Defendants, to pay for Plaintiffs' monthly rent. 

A negotiable instrument is dishonored, generally speaking, when payment on the

instrument is not received according to the terms of the instrument. See FLA. STAT. §

673.5021. Plaintiffs allege that they gave Defendants checks for rent and state that

Defendants cashed the rent checks. There is no allegation that Defendants did not

receive payment on the checks after they were negotiated. This is insufficient to state a

claim.

Tortious Infliction of Emotional Distress

To state a claim for the intentional infliction of emotional distress under Florida

law, a plaintiff must allege four elements: (1) the Defendant's conduct was intentional or

reckless; (2) the conduct was outrageous; (3) the conduct caused emotional distress;

and (4) the emotional distress was severe. Williams v. Worldwide Flight SVCS., Inc.,

877 So.2d 869, 870 (Fla. 3d DCA 2004), citing De La Campa v. Grifols America, Inc.,

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819 So.2d 940, 943 (Fla. 3d DCA 2002). As for the first two elements, the wrongdoer

must have "intended his behavior when he knew or should have known that emotional

distress would likely result" and the conduct must "go beyond all bounds of decency,

and [] be regarded as odious and utterly intolerable in a civilized community." LeGrande

v. Emmanuel, 889 So.2d 991,994 (Fla. 3d DCA 2004), quoting Clemente v. Horne, 707

So.2d 865, 866 (Fla. 3d DCA 1998). When reciting the facts supporting this cause of

action to the average person, it has been described as providing such an unbelievable

scenario that the listener exclaims, "Outrageous!" LeGrande, 889 So.2d at 995, quoting

RESTATEMENT (SECOND) OF TORTS, § 46 cmt. d (1965). 

Plaintiffs' allegations of fact fall far short of this standard. Plaintiffs state just one

sentence to support this claim:

Plaintiffs see the issue of tortious infliction of emotional distress as a

matter of Res Ipsa Loquitur and all of the following actions have caused

great emotional distress by way of defendants actions to harm plaintiffs

business.

Doc. 82, p. 5. Plaintiffs have not alleged any facts showing willful, intentional, or

reckless conduct by the Defendants, and Plaintiffs have not alleged any facts that would

even remotely prompt an "Outrageous" exclamation. This claim should also be

dismissed for failure to state a claim.

Tort Claims

In summation, Plaintiffs have not presented any facts which support any of their

alleged tort claims. In reaching this conclusion, and assuming that this report and

recommendation is adopted by District Judge Rodgers, it is noted that this case will

proceed only on the contract claims. As previously decided, those claims may only be

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brought by Plaintiff Jenny Hansson. See docs. 52, 62. Accordingly, it is further

recommended that the complaint by Plaintiff Burke be dismissed.

Contract Claims

Plaintiff Hansson was also ordered to "provide brief statements of fact showing

how Defendants allegedly breached the contract." Id. It is presumed that the

statements of facts listed in the "overview" section of the more definite statement are

intended to present the supporting statement of facts. Although still not in complete

compliance with the prior order, the statements can generally by inferred to present

allegations of problems that presumably should have been corrected or repaired

pursuant to the lease agreement. Because these claims can only be brought by Plaintiff

Hansson, she should be directed to submit another amended complaint, in her name

only, specifically alleging how Defendants breached the lease agreement, when the

breaches occurred, describing the specific statements within the agreement that support

the claim, and describing the injury to Plaintiff. Plaintiff Hansson is reminded once

again that all statements "shall be made in numbered paragraphs, the contents of which

shall be limited as far as practicable to a statement of a single set of circumstances." 

FED. R. CIV. P. 10(b). 

Jury Trial Issue

In the initial complaint, Plaintiffs requested a trial by jury. Doc. 1, p. 5. In

Defendants' answer to the complaint, Defendants asserted that the lease agreement

between Plaintiff Hannson and Defendants contained a provision waiving "any right to

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3

 Section 40 of the lease agreement, provided by both parties, contains the

following provision: "To the extent of such waiver [sic] is permitted by law, the parties

waive trial by jury in any action or proceeding brought in connection with this lease or

the premises." Doc. 12, exhibit, p. 9; doc. 1, p. 15. Indeed, that provision is clearly

labeled in all capital letters as "WAIVER OF JURY TRIAL." Id. 

Case No. 5:03cv182-MCR/WCS

trial by jury."3 Doc. 12, p. 5. Although Defendants raised that argument, Defendants did

not move to strike the demand for a jury trial. 

Notwithstanding the argument raised in the answer, the Rule 26 planning report

seems to suggest trial by jury: "This case should be ready for trial by January, 2005,

and is expected to take approximately 3 days inclusive of jury selection." Doc. 26, p. 3. 

It is, thus, unclear whether Defendants are willing to waive their argument that Plaintiff

Hansson is not entitled to a jury trial in light of the Rule 26 report. 

Assuming Defendants still contest a jury trial in this case, it is noted that the right

to a jury trial in federal courts is determined by federal law in diversity actions. 

Columbus Mills, Inc. v. Freeland, 918 F.2d 1575, 1577 (11th Cir. 1990), citing Simler v.

Conner, 372 U.S. 221, 83 S.Ct. 609, 9 L.Ed.2d 691(1963); Ford v. Citizens & Southern

National Bank Cartersville, 928 F.2d 1118, 1121 (11th Cir. 1991). Additionally, "[t]he

question of whether the right has been waived is likewise governed by federal law." 

Although the issue of whether a party may waive his or her right to a jury trial by

contract has not been considered by the Eleventh Circuit, other courts of appeal have

accepted the validity of contractual jury trial waivers in certain conditions. See R.J.

Griffin & Co. v. Beach Club II Homeowners Ass'n, 384 F.3d 157, 164 (4th Cir. 2004)

(stating "A party may, of course, waive the jury trial right by signing an agreement to

arbitrate or by binding itself to arbitration as a nonsignatory through traditional principles

of contract or agency law."); Leasing Service Corp. v. Crane, 804 F.2d 828, 832-33 (4th

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4

 The Middle District of Florida did not resolve the issue, finding that the relevant

facts "as articulated by both parties--demonstrate[d] that Plaintiffs did indeed waive their

right to a jury trial knowingly, voluntarily, and intelligently." Allyn v. Western United Life

Assur. Co., 347 F.Supp.2d 1246, 1251-52 (M.D. Fla. 2004). The court stated the

factors to be considered in determining whether a "contractual jury trial waiver was

entered into knowingly, voluntarily, and intelligently" as "(1) the conspicuousness of the

provision in the contract; (2) the level of sophistication and experience of the parties

entering into the contract; (3) the opportunity to negotiate terms of the contract; (4) the

relative bargaining power of each party; and (5) whether the waiving party was

represented by counsel." Allyn, 347 F.Supp.2d at 1252. That list is not, however,

exclusive, and the court considered the issue "in light of all the circumstances." Id.

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Cir. 1986); KMC Co. v. Irving Trust Co., 757 F.2d 752, 755-56 (6th Cir. 1985); National

Equipment Rental, Ltd. v. Hendrix, 565 F.2d 255, 258 (2d Cir. 1977). Those conditions

require a contractual agreement waiver of the right to a jury trial be "knowing and

voluntary." Walker v. Ryan's Family Steak Houses, Inc., 400 F.3d 370, 381 (6th Cir.

2005), relying on Morrison v. Circuit City Stores, Inc., 317 F.3d 646, 668 (6th Cir. 2003)

(en banc ). There is a split of opinion on which party bears the burden of showing the

waiver was knowing and voluntary. Cf. National Equipment Rental Ltd. v. Hendrix, 565

F.2d 255, 258 (2d Cir. 1977)(burden on party seeking enforcement of the waiver),

Crane, 804 F.2d at 832-33 (same); but see K.M.C. Co., 757 F.2d at 758 (burden on

party seeking to avoid waiver).4 There is no need to resolve this dispute at the present

time, however, because it is unknown whether Plaintiff Hannson desires to continue this

case by herself and there is no motion to strike the jury demand pending. 

Other Pending Motions 

Defendant Glaus had filed a motion for judgment on the pleading in early March,

2005. Doc. 68. Because the parties subsequently stipulated to the dismissal of

Defendant Glaus, see docs. 79 and 81, and the stipulated dismissal was accepted, doc.

83, that motion, doc. 68, should now be denied as moot. 

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Finally, Defendants filed an amended motion for a pretrial conference. Doc. 85. 

Ruling on that motion is deferred to the discretion of District Judge Rodgers after

consideration of this report and recommendation. 

RECOMMENDATION

In light of the foregoing, it is respectfully RECOMMENDED that all of the

supplemental state law tort claims be DISMISSED for failure to state a claim, that the

complaint be DISMISSED as to Plaintiff Charlie Burke, that this case proceed solely on

the contract claims of Plaintiff Jenny Hansson, that Plaintiff Hansson be ordered to file

an amended complaint consistent with this report and recommendation, and that the

motion for judgment on the pleading filed by former Defendant Glaus, doc. 68, be

DENIED as moot. 

IN CHAMBERS at Tallahassee, Florida, on May 5, 2005.

s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

 

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 15 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 10

days after being served with a copy thereof. Failure to file specific objections

limits the scope of review of proposed factual findings and recommendations.

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