                Case: 12-15499       Date Filed: 10/21/2013       Page: 1 of 8


                                                                       [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 12-15499
                               ________________________

                        D. C. Docket No. 3:09-00080-MCR-CJK

MORTGAGE NOW, INC.,

                                                                   Plaintiff-Appellee,

                                            versus

GUARANTEED HOME MORTGAGE
COMPANY, INC.,

                                                                   Defendant-Appellant.



                               ________________________

                      Appeal from the United States District Court
                          for the Northern District of Florida
                            _________________________

                                     (October 21, 2013)

Before PRYOR and BLACK, Circuit Judges, and RESTANI, * Judge.

PER CURIAM:

       *
         Honorable Jane A. Restani, United States Court of International Trade Judge, sitting by
designation.
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      Appellant Guaranteed Home Mortgage Company, Inc. (Guaranteed), and

Appellee Mortgage Now, Inc. (MNI) are competing mortgage companies. In

February 2009, MNI’s Destin, Florida, branch manager, Bryan Stone, left MNI’s

employment to work for Guaranteed, taking 12 MNI employees with him. MNI

brought a lawsuit alleging that Guaranteed and former employees Stone and Phillip

Heppding engaged in tortious and disloyal conduct which caused irreparable harm

and damages for MNI. 1 Specifically, MNI alleged that while Stone and Heppding

were still employees of MNI, they solicited MNI employees and customers in

anticipation of their employment with Guaranteed, and that Guaranteed and Stone

conspired to interfere with MNI’s business relations.

      Following a six-day bench trial, the district court concluded that Stone and

Guaranteed tortiously interfered with MNI’s business relationships and joined in a

civil conspiracy together for this purpose. The district court then awarded MNI

$280,261.44 in lost profit damages. On appeal, Guaranteed argues the district

court erred in (1) concluding it and Stone conspired to intentionally interfere with

MNI’s business relations; (2) finding Guaranteed’s conduct proximately caused

MNI’s reduced loan production, and (3) awarding MNI lost profit damages. After




      1
          Stone and Heppding are not involved in this appeal.
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review 2 of the record and the parties’ briefs, as well as the benefit of oral argument,

we affirm the district court’s well-reasoned order.

      I. CONSPIRACY TO INTENTIONALLY INTERFERE IN BUSINESS
                           RELATIONS

       Guaranteed contends the district court erred in determining that MNI proved

all the elements of its claim for intentional interference with business relations

under Florida law. Guaranteed first asserts the district court misstated the elements

of the tort. Under Florida law,

       [t]he 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.

Ethan Allen, Inc. v. Georgetown Manor, Inc., 647 So. 2d 812, 814 (Fla. 1995)

(quotation omitted). In paraphrasing this standard, the district court stated the

fourth element as “that the defendants’ interference resulted in damages to the

plaintiff.” Even assuming the district court should have used the word “breach” in

the standard (as Guaranteed argues), the district court’s findings support that

Guaranteed’s conduct resulted in a breach of relationship between MNI and its

employees and customers.



       2
        On appeal following a bench trial, we review the district court’s legal conclusions de
novo and its factual findings for clear error. Mitchell v. Hillsborough County, 468 F.3d 1276,
1282 (11th Cir. 2006).
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      Guaranteed next argues that its actions were not the proximate cause of

employees leaving MNI. Guaranteed asserts there could be no interference with

MNI’s employees because they were terminable at will. Florida law allows an

action when a party interferes with a contract terminable at will. G.M. Brod & Co.

v. U.S. Home Corp., 759 F.2d 1526, 1534 (11th Cir. 1985). Thus, the employees’

at-will status does not preclude an intentional interference with contractual

business relations action.

      Guaranteed contends that because the employees were already predisposed

to leaving MNI, it cannot be liable for inducing a breach of the relationship, and

that the district court provided too lax of a standard for proximate cause. The third

element of the tort of intentional interference with business relations is the

causation element. Fiberglass Coatings, Inc. v. Interstate Chem., Inc., 16 So. 3d

836, 838 (Fla. 2d DCA 2009). “Causation requires a plaintiff to prove that the

defendant manifested a specific intent to interfere with the business relationship.

No liability will attach unless it is established that the defendant intended to

procure a breach . . . .” Id. (quotation omitted). Further, if one party to a contract

is already predisposed to breach, then the third party’s actions cannot have induced

the breach. Farah v. Canada, 740 So. 2d 560, 561 (5th DCA 1999).

      The evidence presented at trial supports the district court’s conclusion that

Guaranteed’s and Stone’s actions intended to procure a breach of the employees’


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relationships with MNI. The district court did not provide too lax a standard for

proximate cause, and linked the conduct of Guaranteed’s business development

manager, Lou Tesoriero, to the breach of the employees’ relationships with MNI.

The evidence supports that Tesoriero and Stone intended to jump start the new

Destin Guaranteed office with experienced MNI employees and ready-made

business pipelines, and they acted on this agreement by signing up employees

while they were still employed with MNI and encouraging those employees to take

actions inconsistent with their duties toward MNI.

      As to the employees being predisposed to leaving MNI, the record

sufficiently shows that the employees were influenced by Stone’s negative

comments about MNI and its business, which generated fear, and by the prospect

of having a ready-made office and loan pipeline at Guaranteed when they left

MNI. Additionally, the fact that some of the employees were actually fired by

MNI does not affect the proximate cause finding because the record supports that

these terminations would not have occurred without Stone’s and Guaranteed’s

actions. The employees’ relationships with MNI were breached before their

termination date as many of them were already considered employees of

Guaranteed.




                                         5
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      II. PROXIMATE CAUSE OF REDUCED LOAN PRODUCTION

      Guaranteed asserts that the district court engaged in “pure speculation” that

Guaranteed’s and Stone’s actions resulted in MNI-Destin’s reduced loan

production. Florida law requires more than “speculation” to show the defendant’s

conduct resulted in plaintiff’s damages. See Reaves v. Armstrong World Indus.,

Inc., 569 So. 2d 1307, 1309 (Fla. 4th DCA 1990).

      The district court did not engage in mere speculation to conclude that

Guaranteed’s actions resulted in reduced loan production. The evidence supports

that the employees’ discontent, lack of productivity, and redirected energy toward

Guaranteed while they were still employed by MNI in February 2009, combined

with the mass exodus of nearly half of MNI-Destin’s staff reduced productivity in

February through April 2009.

                                  III. DAMAGES

      Guaranteed contends the district court erred in allowing lost profits to be

awarded under a relaxed standard, and that MNI’s damages were not proven with

specificity.

      When a party seeks lost future profits, the party must prove that the lost

profits were a direct result of the defendant’s actions and that the amount of the

lost profits can be established with reasonable certainty. James Crystal Licenses,




                                          6
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LLC v. Infinity Radio, Inc., 43 So. 3d 68, 74 (4th DCA 2010). As to proving the

amount of damages, Florida law provides:

       Difficulty in proving damages or uncertainty as to the amount will not
       prevent recovery as long as it is clear that substantial (rather than
       merely nominal) damages were suffered as a result of the wrong, and
       the competent evidence is sufficient to satisfy the mind of a prudent,
       impartial person as to the amount. However, an award of lost profits
       cannot be based on mere speculation and conjecture.

Id.

       MNI compared Destin closings for the months of November 2008 through

January 2009 with February through April 2009. The average for the preceding

three months was 33 loans closed per month, and an average of 17 loans per month

closed in the subsequent three months. Thus, the average loan closing totals were

down by 16 closings per month. Exhibits in evidence and the testimony of James

Marchese established the average profit per loan was $5,838.78. This totaled lost

profits damages to MNI at $280,261.44, with 16 lost closings per month,

multiplied by the average profit per loan at $5,838.78. The evidence presented is

sufficient to satisfy the mind of a prudent, impartial person as to the amount of lost

profits.3


       3
         While Guaranteed argues on appeal that certain overhead expenses were not deducted
from this calculation, Guaranteed did not make this argument before the district court. Thus, we
do not address this argument. See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324,
1330 (11th Cir. 2004) (explaining we have “repeatedly held that an issue not raised in the district
court and raised for the first time in an appeal will not be considered by this court” (quotation
omitted)).


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       Accordingly, we affirm the district court’s conclusion that Guaranteed and

Stone conspired to intentionally interfere in MNI’s contractual business relations

and award of $280,261.44 4 in lost profit damages.

       AFFIRMED.




       4
        The district court’s damages award totaled $339,468.97 with the inclusion of
prejudgment interest.
                                               8
