FRUTAFINO v. DOLE CHILE (2025)

Under our rules of civil procedure, a party may move after trial to set aside the verdict and to enter judgment in accordance with a prior motion for directed verdict. Fla. R. Civ. P. 1.480(b). These motions are treated the same as a previously made motion for directed verdict. Under our de novo review, we view the evidence in a light most favorable to the non-moving party and resolve any conflicts in that party's favor. Collins v. Sch. Bd. of Broward Cnty., 471 So. 2d 560, 563 (Fla. 4th DCA 1985). But “[o]nly where there is no evidence upon which a jury could properly rely, in finding for the plaintiff, should a directed verdict be granted.” Id.

This is one of those rare cases where the motion should have been granted. The subject claims were barred as a matter of law and no evidence supported the jury's verdict. As a result, we reverse and remand for entry of final judgment in favor of the Appellants.

I.

Appellee Dole Chile, S.A. sells fruit to distributors, who then distribute it to retailers. Appellant Frutafino, a Colombian company, is one of those distributors. Dole has sold fruit to Frutafino since 2016. Appellant Danilo Garcia is a principal and agent of Frutafino. He would frequently negotiate these sales.

Dole would sell to Frutafino on credit, and Frutafino had 45 days from the date of the invoice to pay. Until 2018, Frutafino's line of credit with Dole was $10.75 million. Over the course of those two years, Frutafino had paid over $30 million to Dole. Dole did not have a personal guarantee from Garcia for Frutafino's obligations. Due to an issue between Garcia and another individual, Dole reevaluated the line of credit. Dole reduced it to $1 million. Dole also started selling fruit to Frutafino's competitors in Colombia.

In March 2019, Frutafino placed the five fruit orders, which are the subject of this appeal. To place the orders, Garcia communicated with Dole's commercial manager, Rodrigo Estevez Chevy. At trial, Estevez testified that Garcia did not “say anything ․ that was different than any other client that was placing orders from Dole.” The invoices totaled $564,807.00. This amount was reduced by $60,000.00 for a volume discount. Frutafino paid $97,000.00, which further reduced the amount owed to $408,000.00. Frutafino sold the fruit to third parties and used the proceeds to run its business, as normal. Frutafino, however, did not timely pay the remaining amount.

In September 2019, Dole's director, Juan Pablo Vicuña, visited Garcia at his home in Miami. He attempted to obtain the $408,000.00 without resorting to litigation. Garcia provided Vicuña with three, post-dated checks from a Florida bank account, which had been closed a few days before. Garcia told Vicuña that he would not need to cash the checks because Frutafino planned to pay the debt via a payment plan.

Two months later, Garcia sent an email reiterating that Frutafino intended to pay the debt. Garcia offered Frutafino one of its warehouse properties in Colombia to satisfy the debt. Dole rejected that offer.

Dole sent a civil theft demand to Frutafino and Garcia “regarding the collection of the civil theft of $408,000.” Dole later sent a second civil theft demand to Frutafino and Garcia. It alleged that Dole delivered the fruit in 2019 “based on instructions and negotiations handled by yourself and [Fernando] Fraiz with officials from DOLE CHILE while meeting at your Coral Gables home,” and that “worthless checks” were provided to induce that sale.

Dole filed suit. It alleged a claim for breach of contract against Frutafino; civil theft against Frutafino and Garcia; and fraudulent transfer against Frutafino, Garcia, and Fernando Fraiz, an officer and shareholder of Frutafino. Dole dismissed Fraiz from the lawsuit before trial. Later, Dole amended its complaint to also assert counts for fraudulent inducement and violation of Florida's bad check statute, among others.

Dole prevailed at summary judgment on its “bad check” claim. The remaining claims proceeded to a jury trial. During jury deliberations, the trial court heard arguments on Frutafino's and Garcia's motion for direct verdict. However, it did not rule on the motions, given the late hour.

The jury found Frutafino and Garcia liable for civil theft and fraudulent inducement in the amounts of $408,000, and Frutafino liable for fraudulent transfer. The jury specifically found that Frutafino and Garcia made misrepresentations upon which Dole relied to enter into an agreement to pay for the fruit. However, it found that Frutafino had not breached its contract with Dole.

Renewing their motions for directed verdict, Frutafino and Garcia moved to set aside the verdict. They maintained that none of the counts against them were supported by record evidence or were barred by the independent tort doctrine. It also claimed the statements that Dole purportedly relied upon occurred well-after the sale of the fruit. In other words, there was no statement that induced Dole to sell to Frutafino. The motion was summarily denied without a hearing. This appeal followed.

The trial court erred in denying this motion. Judgment should have been entered in favor of Frutafino and Garcia on all counts. No view of the evidence could sustain a verdict in favor of Dole.

The independent tort doctrine controls. “It is a fundamental, longstanding common law principle that a plaintiff may not recover in tort for a contract dispute unless the tort is independent of any breach of contract.” Island Travel & Tours, Ltd., Co. v. MYR Indep., Inc., 300 So. 3d 1236, 1239 (Fla. 3d DCA 2020). It must go beyond and be independent from the failure to comply with the contract—beyond a simple debt. Gasparini v. Pordomingo, 972 So. 2d 1053, 1055 (Fla. 3d DCA 2008).

While Dole attempts to frame the claims as more than a debt, there was no separate and independent tort. Dole's tort claims are based on the same underlying conduct giving rise to the breach of contract claim—Frutafino's failure to pay the amount it owed for the fruit invoices. See Peebles v. Puig, 223 So. 3d 1065, 1068 (Fla. 3d DCA 2017) (“It is well settled in Florida that, where alleged misrepresentations relate to matters already covered in a written contract, such representations are not actionable in fraud. It is similarly well settled that, for an alleged misrepresentation regarding a contract to be actionable, the damages stemming from that misrepresentation must be independent, separate and distinct from the damages sustained from the contract's breach.”) (internal citations omitted); Invo Florida, Inc. v. Somerset Venturer, Inc., 751 So. 2d 1263, 1265 (Fla. 3d DCA 2000) (“An independent tort requires proof of facts that are distinct from breach of contract.”); Ginsberg v. Lennar Fla. Holdings, Inc., 645 So. 2d 490, 494 (Fla. 3d DCA 1994) (“Where damages sought in tort are the same as those for breach of contract a plaintiff may not circumvent the contractual relationship by bringing an action in tort.”). Dole and its counsel referred to this balance as a “debt” more than 15 times at trial. Thus, the civil theft and fraudulent inducement claims are barred as a matter of law.

Furthermore, on its claim for fraudulent inducement, Dole was required to 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). “Generally, the fraudulent statement must concern a past or existing fact.” Gemini Inv'rs III, L.P. v. Nunez, 78 So. 3d 94, 97 (Fla. 3d DCA 2012). See also Mejia v. Jurich, 781 So. 2d 1175, 1177 (Fla. 3d DCA 2001); Maunsell v. Am. Gen. Life & Acc. Ins. Co., 707 So. 2d 916, 917 (Fla. 3d DCA 1998). Some courts, including ours, have recognized an exception to this requirement “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, such a promise may also constitute a fraudulent misrepresentation.” Mejia, 781 So. 2d at 1177.

Viewing the evidence in the light most favorable to Dole, Dole did not meet this burden. First, there was no evidence that Dole relied on any statements from Frutafino or its agents before fulfilling the March 2019 orders. At that time, Frutafino had paid Dole over $30 million and was an overall good customer. Instead, Dole points to statements made well-after the transaction even occurred—in September 2019. These statements cannot serve as the basis for Dole's fraud claims. Wasser v. Sasoni, 652 So. 2d 411, 412 (Fla. 3d DCA 1995). These post-transaction statements logically could not have induced Dole's prior actions.

Dole tries to fall within the limited exception and claims that Frutafino made future promises and never intended to pay this debt. Yet, the evidence presented at trial belies this assertion. Frutafino made an initial payment reducing the debt. Then, in an email in late 2019, Frutafino tried to fully satisfy the debt. It offered a warehouse property in Colombia as an in-kind payment. Dole rejected that offer.

Dole also points to Frutafino depleting one of its bank accounts. However, the evidence shows that Frutafino had several bank accounts it used to pay Dole and rarely used the bank account in question. And while the post-dated checks are troublesome, there is no evidence that Frutafino and Garcia made any pre-transaction promises. Dole's witnesses could not pinpoint when these alleged statements were made.

Lastly, Dole concedes error on its claim for fraudulent transfer. It correctly recognized that no transfer occurred. The purported transfer was between bank accounts owned by Frutafino. See § 726.102(14), Fla. Stat. (2019) (defining “transfer” as showing a “dispos[al] of or parting with an asset or an interest in an asset”).

Based on the foregoing, we find that the trial court erred by denying Frutafino's and Garcia's motion for judgment notwithstanding the verdict. The claims were either barred as a matter of law or not supported by the evidence. We reverse and remand for judgment in favor of Frutafino and Garcia.

Reverse and remanded with instructions.

GOODEN, J.