# Motorcity of Jacksonville, Ltd. v. Southeast Bank N.A. > Court of Appeals for the Eleventh Circuit · May 8, 1996 · 83 F.3d 1317 URL: https://www.frixlaw.com/law-library/cases/6939071 ## Case - **Full name:** MOTORCITY OF JACKSONVILLE, LTD., a limited partnership, By and Through its general partner MOTORCITY OF JACKSONVILLE, INC., a Florida corporation, David S. Hess v. SOUTHEAST BANK N.A., David Feigenbaum, Federal Deposit Insurance Corporation, as receiver for Southeast Bank, N.A - **Court:** Court of Appeals for the Eleventh Circuit - **Decided:** May 8, 1996 - **Citations:** 83 F.3d 1317 - **Precedential status:** Published - **Opinion:** Concurrence by Birch - **Judges:** Anderson, Barkett, Birch, Black, Carnes, Cox, Dubina, Edmondson, Hatchett, Kravitch, Tjoflat - **Cited by:** 29 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Vacated on other grounds by Hess v. Federal Deposit Insurance Corp., 519 U.S. 1087 (1997). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6939071 ## How later opinions describe it (automated extraction) - recognizing that "federal courts have created and applied federal common law when necessary to protect certain 'uniquely federal interests.' ” - noting that “[i]n Murphy v. FDIC, 61 F.3d 34 (D.C.Cir. 1995), the D.C. Circuit recently held that the Supreme Court’s reasoning in O’Melveny & Myers v. FDIC, 512 U.S. 79 , 114 S.Ct. 2048 , 129 L.Ed.2d 67 (1994), leads ‘ineluctably’ to the conclusion that the common law D’Oench… - noting that “[i]n Murphy v. FDIC, 61 F.3d 34 (D.C.Cir.1995), the D.C. Circuit recently held that the Supreme Court’s reasoning in O’Melveny & Myers v. FDIC, 512 U.S. 79, 114 S.Ct. 2048, 129 L.Ed.2d 67 (1994), leads ‘ineluctably’ to the conclusion that the common law D’Oench do… - recognizing that "federal courts have created and applied federal common law *1375 when necessary to protect certain 'uniquely federal interests.' ” - holding that the D’Oench doctrine applies even when the customer is completely innocent of any bad faith, recklessness, or negligence ## Opinion text BIRCH, Circuit Judge, concurring specially: The majority’s well-crafted and thorough analysis has persuaded me that the court has reached the correct result in this case — and for the right reasons. As the author of the original panel opinion in this case, my initial focus had been on the district court decision we were charged to review. In that opinion, there was no analysis done of the Florida law on negligence, the district court finding “that it need not determine what duty, if any, Florida law imposed on Southeast as a result of Southeast’s exercising its right to conduct audits under the agreement. Such a duty would arise from Southeast’s actions, not from the language of the written agreement.” R2-52-6. It appeared to us, in reviewing the district court’s grant of a motion to dismiss and in refusing to allow a party to amend its complaint, that Motorcity had adequately pleaded Florida tort claims. Based upon the law argued to us, at the pleading stage, we concluded that: These tort claims derive from Florida common law 9 ; they do not depend upon any written or oral contract provision between Motorcity and Southeast. Indeed, Motor-city would appear capable of pleading the same two counts had the floor plan financing agreement never included any mention of audits. ‡ ‡ ‡ ‡ ‡ Motorcity of Jacksonville, Ltd. v. Southeast Bank N.A., 39 F.3d 292 , 299 (11th Cir.1994). Based upon In re Geri Zahn, 25 F.3d 1539, 1543 (11th Cir.1994), and the cases cited therein, we concluded that Motorcity’s negligent-auditing-and-disclosure tort claim was a “free standing tort,” the prosecution of which was not barred by D’Oench or the statutory scheme. The majority’s opinion presents an in-depth analysis of the Florida law of negligence, prefaced by the declaration “we must determine whether Motorcity can state a viable negligence claim based merely upon the fact that Southeast conducted the audit and sent summary reports thereof.” Majority at *1346 1341. After an exhaustive analysis, the following conclusion is reached: We conclude that the Florida case law would imply a tort duty only when actions are undertaken for the benefit of another. It would be inconsistent with well-established Florida law to infer a tort duty merely on account of actions undertaken pursuant to the protection of one’s own interests. Majority at 1342 — 13 (footnote omitted). Thus, the majority concludes that, under the facts as pleaded in this case, no viable independent tort claim exits under Florida law. Based upon the analysis of the pertinent law presented by the majority, I must agree. However, I do not read the majority’s opinion to negate or question the continuing vitality of the “free standing tort” exception to the D’Oench doctrine. Accordingly, I conclude that a well-pleaded, viable state law tort claim may still be pursued without the bar of D’Oench or the applicable federal statute discussed in the opinion. The fact that the tort claim arose out of the banking relationship should not prevent its prosecution. See Barnett Bank of West Florida v. Hooper, 498 So.2d 923, 925 (Fla.1986) (holding that, under certain conditions, a bank assumes a duty to disclose facts material to a transaction); Saglio v. Chrysler First Commercial Corp., 839 F.Supp. 830, 834 (M.D.Fla.1993) (“Although the law does not impose a duty upon [a lender] to reasonably perform inventory checks for [a guarantor’s] benefit, liability for misfeasance can lie where a party voluntarily assumes a duty.”). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6939071. Public record. Not legal advice.