           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                                                        [DO NOT PUBLISH]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:
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       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.

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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]


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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


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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


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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).


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AFFIRMED.




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