FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

May 14, 2008

THOMAS K. KAHN

CLERK

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-13907

Non-Argument Calendar

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D.C. Docket No. 06-00384-CV-T-17-EAJ

THUNDER MARINE, INC.,

Plaintiff-Appellant, 

versus

BRUNSWICK CORPORATION,

a Delaware Corporation,

 Defendant-Appellee.

 

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Appeal from the United States District Court 

for the Middle District of Florida

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(May 14, 2008)

Before EDMONDSON, Chief Judge, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:

Plaintiff-Appellant Thunder Marine, Inc. (“Thunder Marine”) appeals the

grant of summary judgment in favor of Defendant-Appellee Brunswick
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Corporation (“Brunswick”) on Thunder Marine’s breach of fiduciary duty and

unfair trade practices claims. No reversible error has been shown; we affirm.

Thunder Marine sells and services recreational boats in Pinellas County,

Florida; Brunswick is a manufacturer of recreational boats sold by Thunder

Marine. In response to the rapid consumption of water access caused by

residential condominium developments, Brunswick developed an initiative called

the Access to Water Program (the “Program”). The Program -- introduced to

dealers during the summer of 2004 -- encouraged dealers to call to Brunswick’s

attention marinas that were for sale. The Program contemplated Brunswick’s

evaluation of these marinas with an eye toward Brunswick acquiring marinas in

partnership with its dealers. 

Thomas Errath, Brunswick’s General Manager of the Program, called

Thunder Marine in November 2004 to explain the Program and to encourage

Thunder Marine to advise Brunswick if Thunder Marine became aware of a

marina for Brunswick to evaluate. In March 2005, Thunder Marine learned that

the Great American Marina (the “Marina”) -- where Thunder Marine performed

work on its customer’s yachts -- was for sale. Although Thunder Marine

considered the Marina essential to its business and claims to have had the financial

resources to purchase the Marina independently of Brunswick, it chose to pursue a
 Brunswick was unaware of the availability of the Marina when Thunder Marine called it to 1

Brunswick’s attention; but Marine Max’s interest in purchasing the Marina predated the Program.

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partnership with Brunswick through the Program. Thunder Marine brought the

Marina to Brunswick’s attention and was led to believe both that Brunswick

considered the Marina a definite candidate for the Program and that Brunswick

was considering a partnership with Thunder Marine. Thunder Marine alleges that

it apprised Brunswick of the importance of the Marina to Thunder Marine and of

Thunder Marine’s ability to purchase the Marina without participation by

Brunswick.

Over the next few months Thunder Marine sought a decision from

Brunswick about going forward on the Marina with Thunder Marine; Brunswick

failed to disclose to Thunder Marine the criteria used to evaluate potential

properties or partnerships. Brunswick also failed to disclose that Thunder Marine

did not satisfy Brunswick’s partnering criteria under the Program for this Marina.

And unknown to Thunder Marine, Brunswick was engaged in discussions about

the Marina with Marine Max, another Brunswick dealer and a competitor of

Thunder Marine. 

 During much of 2005, entities other than Thunder Marine, Brunswick and

Marine Max, put in contracts for the purchase of the Marina. In early October 1
 Brunswick maintains that it had no agreement to participate with Marine Max until the eve of 2

closing. Thunder Marine calls our attention to extensive discussions between Marine Max and

Brunswick during the time when Thunder Marine maintains it was misled to believe that, if

Brunswick decided to pursue the Marina, it would do so in partnership with Thunder Marine. The

sales agreement on the Marina contained a confidentiality clause; Thunder Marine did not learn the

purchasers’ identities until the day of closing.

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2005, the Marina was again on the market; and in the light of Brunswick’s

seeming reluctance to pursue the Marina in partnership with Thunder Marine,

Thunder Marine took initial steps to purchase the property without participation

by Brunswick. Thunder Marine had secured Michael Meagher (the owner of

Chevrolet dealerships) as a back-up partner on the Marina if Brunswick failed to

go forward. Meetings were held with the Marina’s owner and discussions had

with city officials to review Thunder Marine’s plans. But when Thunder Marine

and its new partner arrived at the Marina in November 2005 with the intention of

making an offer, they learned the property again was under contract. On 11

November 2005, Marine Max executed an agreement to purchase the Marina; the

closing occurred in February 2006. In the end, the Marina was acquired through a

newly formed company owned by Marine Max and Brunswick.2

The district court determined that no reasonable fact-finder could conclude

that an implied fiduciary relationship existed between Thunder Marine and
 No claim is made that an express fiduciary relationship existed. The dealer agreements entered

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into between Thunder Marine and Brunswick subsidiaries disclaim expressly the existence of a

fiduciary relationship. The district court determined that the Program-based claims asserted by

Thunder Marine against the parent company Brunswick were entirely separate from and collateral

to the dealer agreements. So we assume that the express denial of a fiduciary relationship in these

agreements constitutes no express disclaimer of a fiduciary relationship between Thunder Marine

and Brunswick for Program-based claims.

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Brunswick. Under Florida law, a fiduciary relationship may be implied in law 3

based on the specific facts and circumstances surrounding the parties relationship

and the transaction in which they are involved. See Doe v. Evans, 814 So.2d 370,

374 (Fla. 2002). “‘If a relation of trust and confidence exists between the parties

(that is to say where confidence is reposed by one party and a trust accepted by the

other, or where confidence has been acquired and abused), that is sufficient as a

predicate for relief.’” Id. quoting Quinn v. Phipps, 113 So. 419, 421 (1927). The

indispensable condition of an implied fiduciary relationship is “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) (internal quotation and

citation omitted). An arms-length relationship can support no implied-in-law

fiduciary obligations. See Taylor Woodrow Homes Florida, Inc. v. 4/46-A Corp.,

850 So.2d 536, 541 Fla. 5 DCA 2003 (“When the parties are dealing at arm’s th
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length, a fiduciary relationship does not exist because there is no duty imposed on

either party to protect or benefit the other.”).

For summary judgment purposes, we view all facts and draw all reasonable

inferences in the light most favorable to Thunder Marine, the non-movant; the true

facts may prove to be otherwise. See Mangieri v. DCH Healthcare Authority, 304

F.3d 1072, 1073 n. 2 (11 Cir. 2002). Even so viewed, the record allows no th

imposition of implied-in-law fiduciary obligations: Thunder Marine failed to

proffer sufficient indicia of (1) dependency of Thunder Marine on Brunswick; (2)

a disparity of savviness between Thunder Marine and Brunswick on marina real

estate investments generally or the Marina in particular; or (3) an acceptance by

Brunswick of a duty to counsel or otherwise protect Thunder Marine. Thunder

Marine and Brunswick had a long-standing arms-length relationship through

Brunswick subsidiaries; a successful relationship may have inclined Thunder

Marine to proceed without securing some agreement about the proposed marina

venture. But we fail to see support in the record to show that this pre-existing

arms-length manufacturer-dealer relationship was transformed into a fiduciary

relationship when the parties shifted to direct discussions about the Program.

We also note -- as did the district court -- that, even if we were to assume a

material issue of fact exists sufficient to create a jury issue on the nature of the
 As discussed by the district court, the causal break between Brunswick’s alleged misconduct and 4

the damages claimed by Thunder River is fatal to Thunder River’s unfair trade practice claim,

Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. § 501.201.

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relationship between Thunder Marine and Brunswick, the record is undisputed

that Thunder Marine understood the Marina was available for sale for a period in

October and November 2005, knew that other entities had been interested in the

Marina, understood that Brunswick was under no obligation to partner with

Thunder Marine and doubted it would do so. Thunder Marine arranged a back-up

partner with whom it could act if and when the Marina became available; and

when that happened in October 2005, Thunder Marina had the opportunity to

purchase the Marina. But no offer was made or option to purchase secured before

the property again went under contract, this time to Marine Max. Brunswick’s

earlier representations were not the proximate cause of Thunder Marine’s loss of

the Marina.4

AFFIRMED.