IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

PROFESSIONAL TITLE LLC,

AVEST LLC, MICHAEL AVIS, 

and MICHAEL HOWELL,

Plaintiffs,

vs. CASE NO. 5:10-cv-72/RS-EMT

FDIC, as receiver for the 

Bank of Bonifay, 

Defendant.

_________________________________________/

ORDER

Before me are Defendant’s Motion to Dismiss (Doc. 38), and Plaintiffs’ Response 

in Opposition (Doc. 51). Plaintiffs have not addressed the substantive issues raised by the 

Motion, but have notified the court of a pending settlement. The purported settlement 

does not delay my ruling on the Motion to Dismiss as Plaintiffs have not satisfied Fla. 

N.D. Loc. R. 7.1(B) by conferring with the opposing party and jointly requesting a delay. 

Standard of Review

To survive a motion to dismiss, a complaint must contain sufficient facts, which 

accepted as true, state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 129 

S. Ct. 1937, 1949 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569, 127 S. Ct. 

1955, 1974 (2007). Granting a motion to dismiss is appropriate if it is clear that no relief 

could be granted under any set of facts that could be proven consistent with the 

allegations of the complaint. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 
2229, 2232 (1984). In making this determination, the court must accept all factual 

allegations in the complaint as true and in the light most favorable to Plaintiff. 

Christopher v. Harbury, 536 U.S. 403, 406, 122 S. Ct. 2179, 2182 (2003).

Background

While all of the facts are not entirely clear, it appears that Plaintiff Michael 

Howell (“Mr. Howell”) and Plaintiff Michael Alvis (“Mr. Alvis”) purchased farmland 

located in Bonifay, Florida. At some point, Messrs. Howell and Alvis divided the farm 

into two parcels, leaving Mr. Alvis’ parcel “landlocked.” Mr. Howell granted Mr. Alvis 

a non-transferable easement to ensure access to his parcel. Mr. Alvis was also the owner 

of another parcel of land that adjoined the “landlocked” parcel making access to the 

“landlocked” possible via two routes (Doc. 1, p. 2-4). 

To fund the purchase, Mr. Alvis and Plaintiff Avest LLC (“Avest”) borrowed 

funds from Defendant. Defendant took a mortgage interest in the “landlocked” property 

and title insurance was provided by Plaintiff Professional Title LLC (“Professional 

Title”). Professional Title is owned by Mr. Howell and Avest. Avest is in turn owned by 

Mr. Alvis (Doc. 1, p. 2-4). 

Mr. Alvis and Avest fell behind in their mortgage payments, and Defendant 

foreclosed. This foreclosure action resulted in Defendant taking title to the “landlocked” 

property and obtaining a deficiency judgment. Defendant also filed a claim against the 

title policy based on lack of access (Doc. 1, p. 3). 

Plaintiffs claim that Defendant knew of the easement granted by Mr. Howell, and 

also knew that the easement was non-transferrable (Doc. 1, p. 3). Plaintiffs also allege 
that as a result of Mr. Alvis’ problems with the mortgage payment, Defendant instructed 

its loan officers that “no one was to do business with Professional [Title].” 

Analysis

The Sherman Act

Plaintiffs claim that Defendant has violated Section 1 of the Sherman Act, 15 

U.S.C. § 1. Section 1 of the Sherman Act provides that “every contract, combination in 

the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the

several States, or with foreign nations, is declared to be illegal.” Id. “A section 1 

plaintiff must prove an agreement between two or more persons to restrain trade, because 

unilateral conduct is not illegal.” Levine v. Central Fla. Medical Affiliates, 72 F.3d 1538, 

1546 (11th Cir. Fla. 1996). Here, nothing in the complaint alleges any form of actionable 

agreement. Plaintiffs merely allege that Defendant “conspired to deny Professional 

[Title] access to the market in order to stifle competition (Doc. 1, p. 5).” The complaint 

is notably barren of allegations identifying other actors--such as another bank or 

insurance company-- that was party to the alleged conspiracy. In the light most favorable 

to Plaintiffs, the Sherman Act claims are not plausible. 

Bank Holding Company Act

Plaintiffs allege that Defendant violated the Bank Holding Company Act’s 

prohibition of a bank conditioning credit on a customer not “obtain[ing] some other 

credit, property, or service from a competitor of such bank . . .” 12 U.S.C. § 1972 (1) (E). 
Although Plaintiffs allege that Defendant conditioned the extension of credit on 

customers not using Professional Title’s services, they have not alleged that Professional 

Title or any other Plaintiff is a competitor of Defendant. From the facts as presented by 

Plaintiffs, it is not plausible that a Defendant who was engaged in the business of banking 

was also engaged in the title insurance or farming industries. The competitor 

requirement of Section 1972 (E) is not met. 

Tortious Interference with Prospective Business Advantage

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

existence of a business relationship; (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. 

Gossard v. Adia Servs., 723 So. 2d 182, 184 (Fla. 1998). 

Here, Plaintiffs offer threadbare allegations which amount to a recitation of 

elements. Even assuming that Defendant prohibited its customers from using 

Professional Title’s services as a condition of receiving a loan, this is not actionable. A 

bank has the right to designate the source of title insurance that it will accept for its loans. 

A bank in the circumstances of Defendant would be justified in directing its borrowers to 

other title insurers given the dispute between the parties. That is, as Plaintiffs 

acknowledge, Professional Title and Defendant disputed whether the non-transferable 

easement should have been listed as an exception to the title of the “landlocked” parcel. 

This dispute led to other litigation and is ample justification for Defendant’s actions. 
There is no evidence that Defendant went beyond its own customers to restrict 

Professional Title’s business. 

Fraudulent Claim on Title Insurance Policy

Allegations of fraud are subject to heightened pleading standards. Fed. R. Civ. P. 

9 (b). Heightened pleading is satisfied if the complaint sets forth “(1) precisely what 

statements were made in what documents or oral representations or what omissions were 

made, and (2) the time and place of each such statement and the person responsible for 

making (or, in the case of omissions, not making) same, and (3) the content of such 

statements and the manner in which they misled the plaintiff, and (4) what the defendants 

obtained as a consequence of the fraud.” Ziemba v. Cascade Int'l, Inc., 256 F.3d 1194, 

1202 (11th Cir. 2001). 

 Plaintiffs’ complaint falls woefully short of this standard. 

Unjust Enrichment

The elements of an unjust enrichment claim are (1) a benefit conferred upon a 

defendant by the plaintiff; (2) the defendant's appreciation of the benefit and; (3) the 

defendant's acceptance and retention of the benefit under circumstances that make it 

inequitable for him to retain it without paying the value thereof. Fla. Power Corp. v. City 

of Winter Park, 887 So. 2d 1237, 1242, n.4 (Fla. 2004). 

Here, Plaintiffs suggest that Defendant “is entitled to only one recovery” and has 

already “obtained a [deficiency] judgment against [Mr.] Alvis and Avest.” Allowing 
more than one recovery, the Plaintiffs allege, would leave the Defendant “unjustly 

enriched by entitlement to payment twice for the same damage (Doc. 1, p. 7).” However, 

Plaintiffs do not allege that the judgment has been satisfied. Until the judgment it is 

satisfied, no benefit has been conferred to Defendant. 

Accepting all factual allegations in the complaint as true and in the light most 

favorable to Plaintiff, none of the claims are plausible. Significant factual allegations are 

missing that leave all claims subject to dismissal. 

IT IS ORDERED: 

1. The Motion to Dismiss (Doc. 38) is GRANTED without prejudice. 

2. Defendant is granted leave to amend the complaint not later than March 21, 2011. 

3. All pending motions are denied as moot. 

ORDERED on March 9, 2011

 /S/ Richard Smoak

 RICHARD SMOAK

 UNITED STATES DISTRICT JUDGE