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

> District Court of Appeal of Florida · February 6, 2026

URL: https://www.frixlaw.com/law-library/cases/11251789

## Case

- **Court:** District Court of Appeal of Florida
- **Decided:** February 6, 2026
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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.
_____________________________

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

2
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.

_____________________________

Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________

3
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

5
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

7
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

8
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.”

9
(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
10
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11251789. Public record. Not legal advice.