                                                         [DO NOT PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                           FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                             ________________________ ELEVENTH CIRCUIT
                                                                APR 10, 2009
                                    No. 07-15139              THOMAS K. KAHN
                              ________________________            CLERK


                       D.C. Docket No. 01-01779-CV-T-17-EAJ

KEVIN O'HALLORAN,
as Chapter 11 Trustee for Greater
Ministries International, Inc., et al.,


                                                              Plaintiff–Appellant,

WILLIAM C. SMITH, an individual, suing
on behalf of himself and all persons
similarly situated,
JOHN TINGUE, an individual, suing
on behalf of himself and all persons
similarly situated,


                                                                        Plaintiffs,

                                          versus

FIRST UNION NATIONAL BANK OF FLORIDA,
and it successor in name or interest,
a banking entity,


                                                          Defendant–Appellee.
                            ________________________

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

                                   (April 10, 2009)

Before BARKETT, HILL and ANDERSON, Circuit Judges.

PER CURIAM:

      Kevin O’Halloran, the Chapter 11 Trustee for Greater Ministries

International, Inc. appeals the dismissal of his third amended complaint consisting

of five counts against First Union National Bank of Florida. We find it unnecesary

to repeat the facts of this case which are set forth in our prior opinion in

O’Halloran v. First Union Nat’l Bank of Fla., 350 F.3d 1197 (11th Cir. 2003). We

affirm.

      We readily find that there was no reversible error as to the dismissal of the

first four counts of the Complaint. To prevail on these counts the plaintiff had to

show the existence of a special relationship between Greater Ministries and First

Union other than the existence of a general account. The agreement pertaining to

the account in question demonstrated that it was a general checking account. More

importantly, O’Halloran conceded in his brief that it was a general account.

Therefore, O’Halloran could not state a claim on these counts.



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        The remaining count, count five, alleged the negligent performance of duties

voluntarily undertaken. Under Florida law, the failure to perform a voluntarily

assumed duty can give rise to liability. See Brown v. City of Delray Beach, 652

So. 2d 1150, 1153 (Fla. Dist. Ct. App. 1995); Hartley v. Floyd, 512 So. 2d 1022,

1024 (Fla. Dist. Ct. App. 1987). In both of these cases, the defendants promised to

undertake a duty on the plaintiffs’ behalf, and failed to perform it, giving rise to

liability for their negligence. Brown, 652 So. 2d at 1152; Hartley, 512 So. 2d at

1024.

        In this case, Gerald Payne, presented to the bank a facially genuine

authorization to withdraw funds from the subject account. O’Halloran essentially

alleges that because First Union was suspicious of Payne’s activities, it voluntarily

undertook the duty of confirming his authorization to withdraw funds from the

account. This case differs from any of the Florida cases cited in that it is

undisputed that First Union did not explicitly promise Greater Ministries that the

bank would take any steps other than the ordinary duties owed to the owner of a

general account, namely, ensuring that persons seeking to make withdrawals are

facially authorized to do so. First Union did not promise to undertake any duty on

another’s behalf. Rather, the actions undertaken by the bank were taken on its own

behalf and there is no other party to whom it is alleged that First Union made any



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promise. Thus, we find no error in the dismissal of the remaining count five.

      AFFIRMED




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