Onassis Burress and Toni Dicharia v. Roots and Fruits Juicery Inc. and Avenues Mall, LLC

FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

Case No. 5D2024-1876

LT Case No. 16-2023-CA-10274

_____________________________

ONASSIS BURRESS and TONI

DICHARIA,

Appellants,

v.

ROOTS and FRUITS JUICERY INC.

and AVENUES MALL, LLC,

Appellees.

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Nonfinal appeal from the Circuit Court for Duval County.

Michael Scott Sharrit, Judge.

Robert W. Thielhelm, Jr., Brian C. Blair and Lindy K. Keown, of

Baker & Hostetler, LLP, Orlando, for Appellants.

J. Michael Lindell and Connor M. Larkin, of Lindell Farson &

Zebouni, P.A., Jacksonville, and Michael J. Korn, of Korn &

Zehmer, P.A., Jacksonville, for Appellees.

February 6, 2026

WALLIS, J.

We affirm the trial court’s nonfinal order on appeal and write

merely to clarify a statement of law in the order that may cause

some confusion. Specifically, the order stated, “Florida law makes

clear, in the context of commercial torts, proof of fraud sufficient

to support compensatory damages necessarily is sufficient to

create a jury question regarding punitive damages. First Interstate

Dev. Corp. v. Ablanedo, 511 So. 2d 536, 538 (Fla. 1987); see also

Cates v. Zeltiq Aesthetics, Inc., 2020 WL 13413674, at *4 (M.D. Fla.

Aug. 25, 2020).” However, as explained in KIS Group, LLC v.

Moquin, 263 So. 3d 63, 66 (Fla. 4th DCA 2019), the holding in

Ablanedo that “proof of fraud sufficient to support compensatory

damages necessarily is sufficient to create a jury question

regarding punitive damages” was written in the specific context of

the sufficiency of the evidence on a motion for directed verdict on

the claim for punitive damages after the jury considered the issue

of compensatory damages on a fraud claim. This holding cannot

be applied by rote to other procedural contexts and evidentiary

standards. See KIS Group, LLC, 263 So. 3d at 66–67.

In this case, the lower court has determined that the amended

complaint sufficiently states a claim for fraudulent inducement to

contract. In the non-final order on appeal, the lower court granted

plaintiff Roots and Fruits’ motion to amend the complaint to seek

punitive damages against Appellants. The lower court’s order

suggests that sufficiently alleging in the amended complaint a

claim for fraudulent inducement for which the plaintiff seeks

compensatory damages necessarily means that the plaintiff has

shown a reasonable evidentiary basis to seek punitive

damages. While it is true that a claim for fraudulent inducement

to contract necessarily involves the element of intentional

misconduct, and section 768.72(2), Florida Statutes, requires a

showing of intentional misconduct or gross negligence in order for

a defendant to be found liable for punitive damages, sufficient

allegations in a complaint to state a claim for the contractual tort

do not, per se, meet the evidentiary and procedural requirements

of section 768.72. Section 768.72(1) requires the party moving to

amend to seek punitive damages to make “a reasonable showing

by evidence in the record or proffered by the claimant which would

provide a reasonable basis for recovery of such damages.” As we

cautioned in Potter v. S.A.K. Development Corp.:

This case illustrates the sort of confusion

that can result when the statutory procedure is

not complied with. Before a defendant may be

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subjected to financial worth discovery and

required to defend a punitive damage claim, the

statute requires that the plaintiff provide the

court with a reasonable evidentiary basis for

punitive damages. This procedure needs to be

followed exactly as required by statute, using

the standards set forth in the statute.

678 So. 2d 472, 473 (Fla. 5th DCA 1996) (emphasis added); cf.

Noack v. Blue Cross & Blue Shield of Fla., Inc., 872 So. 2d 370,

371–72 (Fla. 1st DCA 2004) (“Whether the entitlement to plead a

claim for punitive damages has been established must be

determined under the procedure and standards set forth in the

statute, and our finding in the earlier appeal that respondents

failed to establish that there is no material issue of disputed fact

concerning the fraud claim is not the equivalent of petitioners

establishing a reasonable evidentiary basis for punitive

damages.”).

As the order on appeal also held that Roots and Fruits’

proffered evidence demonstrated a reasonable basis for a punitive

damages claim against Appellants, we nonetheless affirm the

order.

AFFIRMED.

SOUD, J., concurs.

KILBANE, J., dissents with opinion.

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Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

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Case No. 5D2024-1876

Lt. Case No. 16-2023-CA-10274

KILBANE, J., dissents.

This appeal is about pre-contract representations by a

commercial landlord’s agents and the ability to seek punitive

damages based on these statements. Because the trial court

granted the motion to amend for punitive damages based on

unalleged gross negligence and the underlying claim of fraud in

the inducement was unsupported, I dissent.

Facts

In late 2022 and early 2023, Avenues Mall, LLC (“Landlord”)

negotiated a temporary lease agreement (“Lease”) with Roots and

Fruits Juicery, Inc. (“Tenant”) to operate a juice bar within the

Avenues Mall in Jacksonville, Florida. These negotiations

involved Landlord’s area general manager, Onassis Burress, and

senior leasing representative, Toni Dicharia (collectively,

“Appellants”). In those discussions, Appellants told Tenant that

it could sell smoothies under the Lease, even though other mall

tenants also sold smoothies. Tenant asked about a previous

tenant that had also sold smoothies in the mall, Juice Me Too.

Appellants told Tenant that the previous tenant had product and

marketing issues but did not inform Tenant that Juice Me Too

had been asked to remove the word “smoothies” from their menu

and advertising because of complaints by a permanent tenant,

Smoothie Shack.

In January 2023, Landlord and Tenant executed the Lease

for the express purpose of operating the juice bar and selling

certain approved products including smoothies:

Sole Purpose for which Space Can Be

Used by Tenant:

The operation of Roots + Fruits Juice bar and

offering the retail sale of plant, fruit, vegetable

and nut-based cold pressed juices; fruit juice;

juice-derived products; frozen juice blend

products; smoothies; acai bowls; juice detox

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programs; fresh or frozen plant juices; juice

cleanse kits and other related packages. All

menu items are subject to approval by mall

management.

The Lease also provided: “Addition of product other than those

specified above is subject to Landlord’s advance written approval,

which may be withheld in Landlord’s sole discretion.” The Lease

included a mutual right to terminate for any reason with thirty

days’ written notice.

In April 2023, after a buildout period, Tenant began

operating the juice bar including selling smoothies. In mid-June

2023, however, Appellants asked Tenant to remove an

advertisement featuring a smoothie and to remove smoothies

from the menu based on complaints from Smoothie Shack. In

July 2023, Landlord again requested Tenant cease selling

smoothies before ultimately sending Tenant notice that it would

be exercising its termination option under the Lease. Upon

receiving the notice, Tenant voluntarily ceased its operations at

the mall.

In September 2023, Tenant sued Landlord and Appellants

for fraud in the inducement asserting Appellants represented

that Tenant could sell the same menu of products it offered at

another location, which included smoothies. In support, Tenant

alleged Juice Me Too had also been asked to stop selling

smoothies and therefore Landlord and Appellants knew Smoothie

Shack would also object to Tenant selling smoothies. Tenant

then moved to amend the complaint to include a claim for

punitive damages.

In October 2023, Landlord and Appellants moved to dismiss

the complaint asserting the fraud claim was barred by the

independent tort doctrine and, further, Tenant could not

establish its claim based on the facts and terms of the Lease.

After a hearing, the trial court denied the motion finding the

claim was purportedly based on extra-contractual promissory

fraud and Landlord and Appellants “allegedly had undisclosed

reasons to know or anticipate with predictable certainty that the

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contractual provision for the permitted sale of smoothies would

not be honored.”

In February 2024, Tenant filed an amended motion to amend

the complaint for punitive damages. In its amended proffer,

Tenant asserted Landlord and Appellants committed intentional

misconduct under section 768.72(2)(a), Florida Statutes (2024),

which it reiterated at the hearing on the motion.

In June 2024, the trial court granted the motion in part

ruling Tenant demonstrated a reasonable basis for asserting a

claim for punitive damages against Appellants based on gross

negligence under section 768.72(2)(b), Florida Statutes. At the

same time, the court denied the motion as to Landlord.

Appellants timely appealed.

Merits

The trial court’s ruling on a motion for leave to amend the

complaint to assert punitive damages is reviewed de novo. See

Orlando Health, Inc. v. Mohan, 387 So. 3d 477, 482 (Fla. 5th DCA

2024).

To assess the claim for punitive damages, the trial court

conducts a two-step inquiry. Duff v. Racine, 414 So. 3d 231, 235–

36 (Fla. 4th DCA 2025). The court must first determine whether

the allegations in the proposed amended complaint support the

claim. Id. at 236. Thus, a plaintiff must sufficiently allege the

defendant committed intentional misconduct or gross negligence.1

Cf. § 768.72(2), Fla. Stat. (“A defendant may be held liable for

1. In this context, “intentional misconduct” is defined as

“the defendant had actual knowledge of the wrongfulness of the

conduct and the high probability that injury or damage to the

claimant would result and, despite that knowledge, intentionally

pursued that course of conduct, resulting in injury or damage.” §

768.72(2)(a), Fla. Stat. “Gross negligence,” on the other hand,

exists where “the defendant’s conduct was so reckless or wanting

in care that it constituted a conscious disregard or indifference to

the life, safety, or rights of persons exposed to such conduct.” Id.

§ 768.72(2)(b).

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punitive damages only if the trier of fact, based on clear and

convincing evidence, finds that the defendant was personally

guilty of intentional misconduct or gross negligence.”). “[I]f the

allegations in the proposed amended complaint are sufficient, the

court then must consider whether the plaintiff has established a

reasonable evidentiary basis for recovering punitive damages

consistent with those allegations.” Duff, 414 So. 3d at 236

(quoting Vaziri v. Jerkins, 400 So. 3d 634, 637 (Fla. 4th DCA

2025)); see also § 768.72(1), Fla. Stat. (“In any civil action, no

claim for punitive damages shall be permitted unless there is a

reasonable showing by evidence in the record or proffered by the

claimant which would provide a reasonable basis for recovery of

such damages.”).

“In evaluating the sufficiency of the evidence proffered in

support of a punitive damages claim, the evidence is viewed in a

light favorable to the moving party.” Mohan, 387 So. 3d at 482

(quoting Wayne Frier Home Ctr. of Pensacola, Inc. v. Cadlerock

Joint Venture, L.P., 16 So. 3d 1006, 1009 (Fla. 1st DCA 2009)).

That said, the Florida Supreme Court explained section 768.72

“create[d] a substantive legal right not to be subject to a punitive

damages claim and ensuing financial worth discovery until the

trial court makes a determination that there is a reasonable

evidentiary basis for recovery of punitive damages.” Globe

Newspaper Co. v. King, 658 So. 2d 518, 519 (Fla. 1995) (emphasis

added).

Because Tenant’s allegations support neither the claim for

punitive damages nor the underlying claim of fraud in the

inducement, the trial court erred in granting leave to amend.

First, in its amended motion, Tenant only sought punitive

damages based on allegations of intentional misconduct citing

section 768.72(2)(a). Yet the trial court found Tenant showed a

reasonable basis for asserting a claim for punitive damages based

on unalleged gross negligence. These are distinct bases for

seeking punitive damages. Cf. Vaziri, 400 So. 3d at 637

(“[D]espite expressly recognizing that Plaintiff’s proposed

amended complaint did not contain sufficient allegations to

support a punitive damages claim, the county court nonetheless

granted the motion to amend. This error alone warrants

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reversal.”); Varnedore v. Copeland, 210 So. 3d 741, 745 (Fla. 5th

DCA 2017) (“Absent sufficient allegations, there would be neither

a reason nor a framework for analyzing the proffered evidentiary

basis for a punitive damages claim.”); see also Athienitis v.

Makris, 346 So. 3d 732, 734 (Fla. 2d DCA 2022) (“It is well settled

that an order adjudicating issues not presented by the pleadings,

noticed to the parties, or litigated below denies fundamental due

process.” (quoting Austin v. Austin, 120 So. 3d 669, 675 (Fla. 1st

DCA 2013))).

Second, while I agree with the majority that fraud in the

inducement is a tort claim that can support a claim of punitive

damages, “not every claim is sufficiently compelling to support an

award.” See Yatak v. La Placita Grocery of Fort Pierce Corp., 383

So. 3d 497, 503 (Fla. 4th DCA 2024), review denied, No. SC2024-

0696, 2025 WL 275134 (Fla. Jan. 23, 2025). Because Tenant’s

claim cannot stand, it also cannot provide a reasonable basis for

punitive damages. See Mohan, 387 So. 3d at 484 (“No claim for

punitive damages can exist if the underlying claim cannot exist.”

(quoting Keen v. Jennings, 327 So. 3d 435, 439 (Fla. 5th DCA

2021))); Progressive Select Ins. v. Lloyd’s of Shelton Auto Glass,

LLC, 396 So. 3d 916, 923 (Fla. 2d DCA 2024) (“[I]f it is clear that

the underlying tort has not even been sufficiently alleged, much

less supported by a reasonable basis in the record evidence or

proffer, a court cannot logically conclude that the punitive

damages standard has been satisfied.”).

To recover for fraud in the inducement, the plaintiff must

establish: “(1) a false statement of material fact; (2) the maker of

the false statement knew or should have known of the falsity of

the statement; (3) the maker intended that the false statement

induce another’s reliance; and (4) the other party justifiably

relied on the false statement to its detriment.” Yatak, 383 So. 3d

at 503 (quoting Rose v. ADT Sec. Servs., Inc., 989 So. 2d 1244,

1247 (Fla. 1st DCA 2008)); see also Taylor Woodrow Homes Fla.,

Inc. v. 4/46-A Corp., 850 So. 2d 536, 542 (Fla. 5th DCA 2003). As

to the first and second elements—whether Appellants made

statements of material fact that they knew or should have known

were false—Tenant’s claim was explicitly, and exclusively, based

on allegations that Appellants misrepresented its ability to sell

smoothies at the mall. But this claim is disproven by the fact

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that Tenant admittedly was approved to—and did in fact—sell

smoothies under the Lease.

Even if Appellants were aware of the previous tenant’s

issues selling smoothies, omitting that information in pre-

contract negotiations is not fraudulent absent a duty to disclose.

See Yatak, 383 So. 3d at 504 (“A defendant’s knowing

concealment or non-disclosure of a material fact may only

support an action for fraud where there is a duty to disclose.”

(quoting TransPetrol, Ltd. v. Radulovic, 764 So. 2d 878, 879 (Fla.

4th DCA 2000))); see also Behrman v. Allstate Ins., 388 F. Supp.

2d 1346, 1351 (S.D. Fla. 2005) (“[O]missions are not actionable as

fraudulent misrepresentations unless the party omitting the

information owes a duty of disclosure to the party receiving the

information.”), aff’d sub nom. Behrman v. Allstate Life Ins., 178

F. App’x. 862 (11th Cir. 2006). No such duty exists in this arm’s

length commercial transaction. See Yatak, 383 So. 3d at 504

(“[E]ven intentional nondisclosure of known material facts in a

commercial real estate transaction is not actionable.” (quoting

Green Acres, Inc. v. First Union Nat’l Bank of Fla., 637 So. 2d

363, 364 (Fla. 4th DCA 1994))); Taylor Woodrow Homes, 850 So.

2d at 541 (“When the parties are dealing at arm’s length, a

fiduciary relationship does not exist because there is no duty

imposed on either party to protect or benefit the other.”); see also

Behrman, 388 F. Supp. 2d at 1351 (“In an arms-length

transaction, neither party owes a duty to the other to act for that

party’s benefit or protection, or to disclose facts that the other

party could have discovered through its own diligence.”).

To the extent that Appellants may have made oral

misrepresentations about the potential sale of smoothies, “a party

may not recover in fraud for an alleged false statement when

proper disclosure of the truth is subsequently revealed in a

written agreement between the parties.” Taylor Woodrow

Homes, 850 So. 2d at 542–43. The Lease provided for the sale of

certain products, including smoothies, while also stating in no

uncertain terms: “All menu items are subject to approval by mall

management.” Clearly, the contract covered the subject matter

at issue. See Yatak, 383 So. 3d at 504 (“A party cannot recover in

fraud for alleged oral misrepresentations that are adequately

covered or expressly contradicted in a later written contract.”

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(quoting Mac-Gray Servs., Inc. v. DeGeorge, 913 So. 2d 630, 634

(Fla. 4th DCA 2005))); Parque Towers Devs., LLC v. Pilac Mgmt.,

Ltd., 395 So. 3d 189, 194 (Fla. 3d DCA 2024) (same), reh’g denied

(July 9, 2024).

Finally, even if Appellants had knowingly made false

statements, Tenant still could not assert it relied on these pre-

contractual statements where it agreed to non-reliance clauses in

the Lease.2 See Billington v. Ginn-La Pine Island, Ltd., LLLP,

2. Per the terms of the Lease, Tenant explicitly denied

reliance on extra-contractual representations of Landlord’s

agents:

This Lease is an integrated agreement which

contains the entire agreement between the

parties as to the matters addressed herein and

incorporates all prior discussions and

agreements. There are no agreements between

the parties which are not contained herein, and

Tenant has not received or relied on any

representations from Landlord or Landlord’s

agents. The Lease terms are intended by the

parties as a final expression of their agreement

with respect to such terms and may not be

contradicted by evidence of any prior

agreement or contemporaneous oral agreement.

The parties further intend that this Lease

constitutes the complete and exclusive

statement of its terms and that no extrinsic

evidence whatsoever may be introduced in any

judicial or arbitration proceeding, if any,

involving this Lease.

(emphasis added). Further, Tenant expressly disclaimed any

representations or promises contradicted, qualified, or limited the

Lease provisions:

Tenant acknowledges that no one has made any

representations or promises to Tenant regarding

renewal or extension of the Term, limiting or

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192 So. 3d 77, 84 (Fla. 5th DCA 2016) (“[W]e hold that the ‘non-

reliance’ clauses in this case negate a claim for fraud in the

inducement because Appellant cannot recant his contractual

promises that he did not rely upon extrinsic representations.”);

see also MSC Trading, S.A. v. Delgado, No. 22-20075-CV, 2024

WL 3103942, at *4 (S.D. Fla. May 20, 2024) (“[E]ven if

Defendants could assert that the oral representations could

amount to fraudulent misrepresentations of fact, Defendants

could not have possibly relied on them, as a matter of law, given

the express provisions of the Agreement that fully negates any

such reliance.”), report and recommendation adopted, No. 1:22-

CV-20075-DPG, 2024 WL 3564585 (S.D. Fla. July 29, 2024).

Because the trial court erred in granting the motion to

amend based on unalleged gross negligence and because the

underlying claim could not stand, I would reverse the order

granting the motion.

eliminating Landlord’s right to terminate on

short notice as set forth herein, any potential

for relocation or possession of other space in the

Shopping Center, or in any other manner

contradicting, qualifying, or limiting the

express provisions hereof.

(emphasis added).

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