Delk et al v. Bank of America, N.A.

Filing 83

ORDER granting in part and denying in part 68 Defendant's motion for summary judgment. Defendant's motion for summary judgment is granted as to Counts V and VI (IIED) and denied as to Counts III and IV (negligence). By 1/21/16, Plaint iffs' counsel shall explain the deficiencies noted in footnotes 1-4 of the Order. The parties shall notify the Court of the status of scheduling a settlement conference by 1/21/16. See Order for additional details. Signed by Judge Timothy J. Corrigan on 1/6/2016. (SEJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
DONALD DELK and SANDRA DELK,
Plaintiffs,
v.

Case No. 5:14-cv-469-Oc-32PRL

BANK OF AMERICA, N.A.,
Defendant.
ORDER
This case arises out of the Plaintiffs Donald and Sandra Delk’s claim that
Defendant Bank of America, N.A. mistakenly foreclosed on the Delks’ property when
it meant to foreclose a property nearby. This case is before the Court on Bank of
America’s Motion for Partial Summary Judgment as to the Delk’s claims for
negligence (Counts III and IV), intentional infliction of emotional distress (Counts V
and VI), and certain types of damages, fees, and costs. (Doc. 68.) The Delks filed their
response in opposition (Doc. 69), to which Bank of America replied (Doc. 76). On
November 16, 2015, the Court held a hearing on the motion, the record of which is
incorporated herein. (See Doc. 80.) Following the hearing, the parties notified the
Court that they were not proceeding with settlement negotiations and asked the Court
to rule on the pending motions. (Doc. 81.)
I.

BACKGROUND
In 2006, Brian Dillon became the owner of real property located at 3148 N.

Bravo Dr., Beverly Hills, Florida (the “Dillon Property”). (Doc. 69 at ¶ 6.) Dillon

executed and delivered a mortgage (the “Dillon Mortgage”) drafted by Bank of
America, which contained a correct legal description, but listed an incorrect address
of 5325 W. Mustang Blvd., Beverly Hills, Florida, 34465. (Id. at ¶¶ 7-9.)
In August 2009, Bank of America foreclosed on the Dillon Mortgage and
received a Final Judgment of Mortgage Foreclosure in May 2010. (Id. at ¶ 12.) In the
midst of these foreclosure proceedings, on March 13, 2010, the Delks purchased real
property at 5325 W. Mustang Blvd., Beverly Hills, Florida (the “Delk Property”)—the
same address listed on the Dillon Mortgage—and began building a single family
residence there.1 (Id. at ¶¶ 1, 5.)
After a foreclosure sale in 2012, a Certificate of Title issued to Bank of America,
which hired various vendors to preserve, maintain, market, and sell the Dillon
Property. (Id. at ¶¶ 14, 16.) According to the bank, it hired the vendors to do
preservation work on properties acquired through foreclosure, including determining
occupancy status and maintaining the lawn. (Doc. 68 at 6; Doc. 68-1 at 9.) The bank
provided the vendors with the Mustang address listed on the Dillon Mortgage, and
therefore those vendors entered the Delk Property without consent to perform their
duties. (Doc. 68 at ¶ 29.) As a result, the Delks hired attorney Donald Perrin, who
advised Bank of America’s real estate agent and broker, Sun Crest Florida Properties,
LLC, and its foreclosure counsel, Marshall Watson, that the Delks owned the Delk

The Delks’ Statement of Undisputed Facts cites the Deposition Transcript of
Sandra Delk, Ex. D at 11:2-4 (Doc. 69-4) to support this fact, but the Delks did not
include page 11 in the exhibit submitted to the Court. (Doc. 69 at ¶ 5.)
1

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Property, trespasses were occurring, and demanded that the trespasses cease.2 (Id. at
¶¶ 19-20.) In addition, the Delks retained another attorney to file a quiet title action
against Bank of America in November 2012. (Id. at ¶ 26.) In April 2013, the parties
entered into a “Stipulation Vacating Default Entered Against Defendant Bank of
America, N.A,” which stated that Bank of America had no claim, right, or interest in
the Delk Property. (Id. at ¶ 27.) Accordingly, in June 2013, Bank of America updated
its systems to reflect the correct physical address of the Dillon Property. (Doc. 68 at ¶
10.)
Nevertheless, Bank of America’s vendors continued to enter the Delk Property
after April 2013. (Doc. 69 at ¶ 28.) In addition, at some point in 2013, Bank of America
sold the Delk Property at auction to Michael Young,3 though the sale never closed.4
(Id. at ¶¶ 23-24.)

The Delks’ Statement of Undisputed Facts cites the Deposition Transcript of,
Maria Cubelo Hinton (an agent for Sun Crest Florida Properties, LLC), Ex. C at 37:439:14 (Doc. 69-3), to support the fact that Perrin sent a letter to Watson. (Doc. 69 at ¶
20.) The cited material, however does not specify that Perrin sent a letter to Watson,
but instead describes Ms. Hinton’s growing awareness of a discrepancy between the
physical address and parcel ID. (Doc. 69-3 at 4-5.)
2

The Delks’ Statement of Undisputed Facts states that Bank of America sold
the Delk Property at auction to Michael Young in November 2013. (Doc. 69 at ¶ 23.)
The evidence cited to support that fact, however, does not state the date of the sale,
but merely that the sale occurred. (Doc. 69 at ¶¶ 23-24; Doc. 69-1 at ¶¶ 26-27.) Bank
of America’s Statement of Undisputed Facts does not mention the sale to Young. (Doc.
68 at 2-4.)
3

The Delks’ Statement of Undisputed Facts cites the Deposition Transcript of
Chad Anderson, Ex. B at 89:5-10 (Doc. 69-2) to support this fact, but the Delks did not
include page 89 in the exhibit submitted to the Court. (Doc. 69 at ¶ 24.)
4

3

On April 10, 2014, the Delks filed a complaint in Florida state court, bringing
claims for trespass, negligence, negligent and intentional infliction of emotional
distress, and defamation against Bank of America. (Doc. 1, Ex. A.) Bank of America
subsequently moved to dismiss certain counts of the complaint, which the state court
granted on August 12, 2014. (Doc. 1.) On August 18, 2014, the Delks filed an amended
complaint in state court that dropped their negligent infliction of emotional distress
and defamation counts. (Doc. 2.) On August 22, 2014, Bank of America removed the
case to this Court (Doc. 1), and, on August 28, 2014, filed a motion to dismiss certain
counts of the amended complaint (Doc. 7). The Delks responded to the motion to
dismiss on September 8, 2014. (Doc. 11.)
On December 18, 2014, the Court granted the motion to dismiss, dismissing
both claims for intentional infliction of emotional distress and granting leave to file a
second amended complaint by January 16, 2015. (Doc. 19.) On January 9, 2015, the
Delks filed their Second Amended Complaint (“SAC”), which alleges six counts
including, trespass (Count I); trespass – vicarious liability (Count II); negligence
(Count III); negligence – vicarious liability (Count IV); intentional infliction of
emotional distress (Count V); and intentional infliction of emotional distress –
vicarious liability (Count VI). (Doc. 20.) This time, Bank of America elected to answer.
(Doc. 23.)
After several months of discovery, Bank of America now moves for partial
summary judgment on the negligence and intentional infliction of emotional distress
claims, and requests that the Court make certain findings as to possible damages, fees,

4

and costs. (Doc. 68.) The Delks filed their response in opposition (Doc. 69), to which
Bank of America replied (Doc. 76). Thus, the motion is ripe for this Court’s review.
II.

STANDARD OF REVIEW
Summary judgment is proper where “there is no genuine issue as to any

material fact” and “the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(c). “The burden of demonstrating the satisfaction of this standard lies with
the movant, who must present pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, that establish the absence of
any genuine material, factual dispute.” Branche v. Airtran Airways, Inc., 342 F.3d
1248, 1252-53 (11th Cir. 2003) (internal quotations omitted). An issue is genuine when
the evidence is such that a reasonable jury could return a verdict for the non-movant.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986).
In determining whether summary judgment is appropriate, a court must draw
inferences from the evidence in the light most favorable to the non-movant and resolve
all reasonable doubts in that party’s favor. See Centurion Air Cargo, Inc. v. United
Parcel Serv. Co., 420 F.3d 1146, 1149 (11th Cir. 2005). However, “Rule 56 mandates
the entry of summary judgment, upon motion, against a party who fails to make a
showing sufficient to establish an element essential to his case on which he bears the
burden of proof at trial.” Schechter v. Ga. State Univ., 341 Fed. Appx. 560, 562 (11th
Cir. Aug. 12, 2009) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).

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III.

ANALYSIS
A.

Negligence

Federal courts sitting in diversity apply the substantive law of the forum state.
See Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). Under Florida law, a plaintiff
must prove four elements to prevail on a negligence claim: (1) the defendant owes a
legal duty to the plaintiff; (2) the defendant breached that duty; (3) the defendant’s
breach legally caused an injury to the plaintiff; and (4) damages resulted from the
injury. See Sexton v. U.S., 132 F. Supp. 2d 967, 974 (M.D. Fla. 2000). The Florida
Supreme Court has held that while breach, causation, and damages are ordinarily
questions for the jury, “duty exists as a matter of law and is not a factual question for
the jury to decide.” McCain v. Fla. Power Corp., 593 So. 2d 500, 503 (Fla. 1992).
Here, Bank of America disputes whether it owed any duty to the Delks, as it
had no relationship with them prior to the foreclosure activities leading to these
proceedings.5 (Doc. 68 at 5-6.) It remains silent regarding the breach, causation, and
damages elements of negligence. The Delks argue that Bank of America had a duty to
conduct its mortgage activities—particularly its foreclosures—in a reasonably prudent
manner (Doc. 69 at 10), and identify three sources of this duty: legislative enactments,

The Court notes Bank of America’s other argument that there is no cause of
action in negligence for unauthorized entry upon land. This argument
mischaracterizes the Delks’ negligence claims. It is clear from the complaint (Doc. 20)
and the Delks’ response (Doc. 69) that they claim Bank of America acted negligently
in connection with its mortgage preparation and foreclosure activities, not its physical
entry upon the property. The Court will analyze the Delks’ negligence claims
accordingly.
5

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judicial precedent, and those duties arising from the general facts of the case. See
McCain, 593 So. 2d at 502.
First, the Delks argue that § 697.10, Fla. Stat., imposed a duty on Bank of
America to prepare its mortgage and foreclosure documents in a manner that would
not impair their title to real property. Section 697.10 provides that:
[i]n any action relating to real property, if the court shall find that any
person has prepared an instrument which due to an inaccurate or
improper legal description impairs another person’s title to real
property, the court may award to the prevailing party all costs incurred
by her or him in such action, including reasonable attorney’s fees, and
in addition thereto may award to the prevailing party all actual
damages that she or he may have sustained as a result of such
impairment of title.
Fla. Stat. § 697.10 (emphasis added).
The undisputed facts of this case demonstrate that the error in the Dillon
Mortgage was an incorrect address, not an incorrect legal description per se. (Doc. 69
at 4, ¶ 9.) Nevertheless, the Court is not yet prepared to rule as a matter of law that
the statute does not apply.6
The Delks have not provided any examples of case law—the second alleged
source of duty—in which a duty arose between a foreclosing bank and a homeowner
whose home was improperly seized in a foreclosure proceeding. Thus, the Court turns
to the third source of duty—the general facts of the case—to uncover a source of duty.

As of December 30, 2015, searches of both Westlaw Next and Lexis Advance
reveal that this statute has never been cited by a court in a case available on either
database. Because the Court finds another available source of duty, see infra, pp. 8-9,
the Court will reserve ruling on the statute’s applicability at this time.
6

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This argument has merit. Pursuant to the “undertaker’s doctrine,” one who
undertakes, gratuitously or for consideration, to render services to another which he
should recognize as necessary for the protection of a third person is subject to liability
to the third person for physical harm resulting from his failure to exercise reasonable
care, if (1) the failure to exercise reasonable care increases the risk of such harm; (2)
he has undertaken to perform a duty owed by the other to the third person; or (3) the
harm is suffered because of reliance of the other or the third person upon the
undertaking. See Lipkin v. Norwegian Cruise Line Ltd., 93 F. Supp. 3d 1311, 1326
(S.D. Fla. 2015) (citing Clay Elec. Co-op., Inc. v. Johnson, 873 So. 2d 1182, 1186 (Fla.
2003)); Restatement (Second) of Torts § 324A (1965). Comment b of the Restatement
(Second) of Torts explains that § 324A applies to any undertaking to render services
to another, where the actor’s negligent conduct results in physical harm to the third
person or his things. See Restatement (Second) of Torts § 324A, Comment b (1965)
(emphasis added).
Here, Bank of America undertook the responsibility of drafting the Dillon
Mortgage and enforcing its terms, including engaging in foreclosure activities. The
bank’s conduct in listing an improper address created a foreseeable zone of risk that
a third party such as the Delks could be injured. The Court finds that it was
foreseeable that the Delks would rely on Bank of America to correct its mistake and
correct the inaccuracies in the Dillon Mortgage, and that Bank of America had a duty
to lessen the risk of harm to the Delks. See Assouman v. Bank of Am. Corp., No. 207CV-151-FTM-29SPC, 2008 WL 2262031, at *3 (M.D. Fla. May 30, 2008) (denying

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defendant’s motion for summary judgment on plaintiff’s negligence claim where
defendant bank “may have undertaken a duty” to return mistaken checks to a third
party and explain bank’s error). Due to Bank of America’s conduct, the Delks have
allegedly suffered harm to their “things”—specifically parts of their property such as
the fence, elements of the house, and the driveway. See Ramjeawan v. Bank of Am.
Corp., No. 09-20963-CIV, 2010 WL 1645097, at *3 (S.D. Fla. Apr. 21, 2010) (denying
motion in limine of defendant claiming that the “undertaker’s doctrine” is expressly
limited to cases involving physical harm) (citing Banfield v. Addington, 104 Fla. 661,
667 (1932) (holding that one who undertakes to act is under an implied legal duty to
act with reasonable care to ensure that the person or property of others will not be
injured as a result of the undertaking)). The Court finds that Bank of America owed a
duty to the Delks under the facts of the case, and material factual disputes remain as
to the remaining elements of negligence.
Thus, Bank of America’s motion for summary judgment as to the Delks’
negligence claims (Counts III and IV) is due to be denied.
B.

Intentional Infliction of Emotional Distress

Under Florida law, to state a claim for intentional infliction of emotional
distress, the plaintiff must establish the following: (1) defendant acted recklessly or
intentionally; (2) defendant’s conduct was extreme and outrageous; (3) defendant’s
conduct caused the plaintiff’s emotional distress; and (4) plaintiff’s emotional distress
was severe. See Metropolitan Life Ins. Co. v. McCarson, 467 So. 2d 277, 278–79 (Fla.
1985). Courts uphold claims for IIED in only “extremely rare circumstances.” Id.

9

(quoting Gonzalez–Jimenez de Ruiz v. United States, 231 F. Supp. 2d 1187, 1199 (M.D.
Fla. 2002)).
“Whether alleged conduct is outrageous enough to support a claim of intentional
infliction of emotional distress is a matter of law, not a question of fact.” Frias v.
Demings, 823 F. Supp. 2d 1279, 1288 (M.D. Fla. 2011) (quoting Gandy v. Trans World
Computer Tech. Grp., 787 So. 2d 116, 119 (Fla. 2d DCA 2001)). This is an objective
question, and the subjective response of the victim does not control. See id. Florida
courts use a very high standard in evaluating whether the facts alleged are sufficiently
outrageous. Id. In defining what constitutes “outrageousness,” the Florida Supreme
Court has adopted the language of Comment d to the Restatement (Second) of Torts,
which states:
It has not been enough that the defendant has acted with an intent
which is tortious or even criminal, or that he has intended to inflict
emotional distress, or even that his conduct has been characterized by
“malice,” or a degree of aggravation which would entitle the plaintiff to
punitive damages for another tort. Liability has been found only where
the conduct has been so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to be regarded
as atrocious, and utterly intolerable in a civilized community. Generally,
the case is one in which the recitation of the facts to an average member
of the community would arouse his resentment against the actor, and
lead him to exclaim, “Outrageous!”
Metropolitan Life, 467 So. 2d at 278 (citing Restatement (Second) of Torts, § 46). Thus,
“[t]here are only a very limited set of cases in which courts [have] recognized conduct
as sufficiently egregious to support a claim of intentional infliction of emotional
distress.” Bakar v. Bryant, No. 13-21927-CIV, 2013 WL 5534235, at *2 (S.D. Fla. Oct.

10

7, 2013) (quoting Saadi v. Maroun, No. 8:07–cv–1976–T–24–MAP, 2008 WL 4194824,
at *4 (M.D. Fla. Sept. 9, 2008)).
Here, Bank of America allegedly engaged in outrageous conduct when its
vendors entered the Delk Property, damaging property and even stealing an item.
(Doc. 68 at 6.) The Delks argue that Bank of America’s disregard of notices of its
trespasses and repeated impairment of the Delks’ ownership of their property further
exemplify its outrageous conduct. (Doc. 69 at 16.) Bank of America, however, argues
that “[t]here is no evidence that the acts enumerated in Plaintiffs’ IIED claim occurred,
and the enumerated acts would not amount to ‘outrageous conduct.’” (Doc. 68 at 9.)
For the following reasons, the Court agrees with the bank.
Seven allegations in the Second Amended Complaint specifically describe Bank
of America’s and/or its agents’ actions which occurred in connection with its alleged
trespasses: (1) breaking through a locked fence; (2) verbally assaulting the Delks and
threatening physical harm if they did not leave the property; (3) conducting “certain
activities” which damaged the partially constructed home and improvements,
including damage to the doors, windows, masonry, and columns; (4) degrading the
driveway with equipment and vehicles to the point that the Delks decided to regrade
it; (5) damaging sprinklers heads and pipes; (6) causing members of the Delks’ church
and community to believe that the Delks had defaulted on a mortgage, undergone
foreclosure, and had their property sold at a foreclosure sale; and (7) making
statements to third parties that the Delks’ property had been foreclosed and sold to

11

Bank of America, which damaged the Delks’ reputation, name, and honor in their
church and community. (See Doc. 20 at 18-19, 22-23.)
Applying the legal principles outlined above to these allegations, and construing
the Delks’ claims in the light most favorable to them, the undersigned finds that the
Delks have failed to create an issue of fact for IIED because they have not established
that Bank of America’s conduct was “beyond all possible bounds of decency.”
First, the Court considers the allegations of property damage which occurred
during Bank of America’s alleged trespasses. Bank of America asserts that there is no
evidence that the acts alleged in the complaint even occurred. (Doc. 68 at 9.) Chad
Anderson, Bank of America’s corporate representative, testified that he found no
documentation that the preservation workers damaged the Delk Property, nor any
evidence that the Delks or other individuals notified the bank of damage. (Doc. 68-1
at 11.) Bank of America asserts that it deposed over a dozen potential witnesses, but
none could attest to the damage complained of, or link the damage to the bank. (Doc.
68 at 8-9.)
Further, in the course of investigating the Delks’ allegations, Bank of America
uncovered evidence that at least some of the acts likely never occurred. For instance,
Mr. Delk testified that Bank of America hired Village Pest Management to spray
pesticide on the Delk Property, which somehow harmed the Delks’ health. (Doc. 68-3
at 5.) But Robert Durham, the owner of Village Pest Management, testified that he
had never sprayed pesticide on the Delk Property or been hired by Bank of America to
do any work. (Doc. 68-4 at 5-7.) Instead, he had only driven onto the Delk Property

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accidentally while looking for another house. (Id.) The Delks’ response fails to address
these arguments, and it remains unclear whether the property was sprayed with
pesticide at all.
Overall, the Delks’ response to the motion fails to direct the Court’s attention
to any specific evidence regarding Bank of America’s enumerated acts, beyond stating
that the Delks “submit that they did suffer actual damages to their property” and
citing to the deposition transcript of their expert engineer, Gilberto Ramos. (Doc. 69
at 16.) Ramos testified that the cost of building materials increased by anywhere from
five to thirty percent between 2011 and the present. (Doc. 69-9 at 36-37.) In addition,
he briefly addressed a question regarding whether certain property damage, including
scuffing, resealing windows, regrading the property, and replacing exterior doors and
casings, was related to the delay in construction. He opined that the scuffing was
associated with activities going on after the property was seized, but could not
definitively state whether the cracking of the exterior was related to the delay, noting
“it’s subjective” and that “it may or may not have increased the size of the cracks that
were observed. . . .” (Id. at 37.) He did not provide answers regarding the other damage
specified, other than stating that the cost of wood increased.
The Delks do not otherwise point to evidence of the alleged damage to the fence,
sprinklers, or other improvements, or provide photos, receipts, or records to show that
any damage occurred, much less connect it to Bank of America’s conduct. See Morisky
v. Broward Cnty., 80 F.3d 445, 447 (11th Cir. 1996) (“Rule 56(e) . . . requires that the
nonmoving party go beyond the pleadings and by her own affidavits, or by the

13

‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific
facts showing there is a genuine issue for trial’”).
Even considering all the facts and inferences in the light most favorable to the
Delks, the Court cannot find that these enumerated instances of property damage (if
they did occur) rise to the level of “atrocious” or “utterly intolerable in a civilized
community.”
Next, the Delks claim that when they confronted Bank of America during one
of the trespasses, they were “verbally assaulted and threatened with physical harm if
they did not leave their own property.” (Doc. 20 at 18.) It remains unclear exactly what
was said or who said it. See Saadi, 2008 WL 4194824, at *5 (allegations of “bullying,
intimidation, and menacing” and making “written and verbal threats of physical
violence” against plaintiff and his elderly father were considered a “vague reference to
verbal threats” and insufficient to allow IIED claim to go forward). The Delks fail to
reference any evidence describing this alleged verbal assault.
Moreover, it is well-settled under Florida IIED law that “[l]iability . . . does not
extend to mere insults, indignities, threats, or false allegations.” Williams v.
Worldwide Flight Servs., Inc., 877 So. 2d 869, 870 (Fla. Dist. Ct. App. 2004) (constant
use of derogatory racial terms in front of employee and other employees, and false
accusations do not rise to level of outrageous conduct for IIED); see also Koutsouradis
v. Delta Air Lines, Inc., 427 F.3d 1339, 1345 (11th Cir. 2005) (insults and indignities
do not support claim for IIED); Saadi, 2008 WL 4194824, at *4. Allegations of verbal
harassment, without significant physical attack, are insufficient to plead an

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intentional infliction of emotion distress claim. See Bakar v. Bryant, No. 13-21927CIV, 2013 WL 5534235, at *3 (S.D. Fla. Oct. 7, 2013) (dismissing IIED claim where
defendant yelled and pounded on door in the early morning while trespassing on
plaintiffs’ family property); compare with Nims v. Harrison, 768 So. 2d 1198, 1199
(Fla. Dist. Ct. App. 2000) (sufficient allegations involved death threats, and threats to
rape plaintiff’s children and other family members). Here, the Delks’ vague reference
to verbal assault and threats of physical harm is insufficient for a claim of IIED.
Moreover, like their allegations of verbal assault, the Delks’ claims that Bank
of America’s actions and statements to third parties damaged their reputation and
caused them embarrassment are insufficient to state a claim for IIED. See Legrande
v. Emmanuel, 889 So. 2d 991, 995 (Fla. Dist. Ct. App. 2004) (while being falsely
branded a thief in front of parishioners might certainly be “unsettling, embarrassing,
and/or humiliating” for clergyman, defendant’s conduct did not meet “extreme and
outrageous” standard). As with the incident of verbal assault, it is unclear what
specific actions and statements occurred, who said what, when, and to whom, and the
Delks again fail to cite any evidence that these alleged actions and statements ever
happened. While Bank of America’s actions, if true, might cause embarrassment in
the community, as a matter of law, the Court cannot find its conduct would meet the
“very high standard” of outrageousness required to prove this claim.
The Court has also considered the Delks’ argument that Bank of America’s
disregard of notices of its trespasses and the resulting impairment of the Delks’
ownership of their property constituted outrageous conduct. But under Florida law,

15

even allegations of “reprehensible, objectionable, and offensive” conduct have been
rejected as insufficient to state a claim for intentional infliction of emotional distress.
Bakar, 2013 WL 5534235, at *2 (citing Williams, 877 So. 2d at 870). With this standard
in mind, even considering the ongoing nature of Bank of America’s alleged conduct, as
a matter of law, the conduct in question is not enough to rise to the level of
outrageousness necessary to allow a claim for IIED.
Therefore, Bank of America’s motion for summary judgment is due to be
granted as to the IIED claims (Counts V and VI).7
C.

Damages Available for Trespass8

Bank of America argues that, in the event that the Delks prevail on their
trespass claims at trial, the Court should limit their recovery on those claims to
nominal and property damages. (Doc. 68 at 15.) This preemptive request stems from
deposition testimony indicating that the Delks seek $5 million through this action—
$300,000 for expenses related to the Delks’ property, and the remainder for loss of use,
emotional distress, and pain and suffering. (Id.)
The Delks broadly respond that “they have demonstrated all of the facts that
establish a cause of action for negligent or wrongful foreclosure and they are therefore
not limited to the measure of damages for trespass . . . .” (Doc. 69 at 22.) As an initial

Even though they do not support an IIED claim, some of these events, if they
can be proven, might be admissible as to the remaining counts or as to damages.
7

To the extent Bank of America is requesting that the Court foreclose any claim
for punitive damages in connection with the trespass counts, the Court has addressed
that issue in a separate Order and ruled that the Delks may seek punitive damages.
(Doc. 82.)
8

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matter, there is no claim for negligent or wrongful foreclosure before the Court.
Regardless, Bank of America has not asked the Court to limit the damages available
to the Delks on their claims for negligence9 but instead specifies damages only as to
the two trespass counts.
“‘Trespass to real property is an injury to or use of the land of another by one
having no right or authority.’” Glen v. Club Mediterranee, S.A., 450 F.3d 1251, 1254
n.1 (11th Cir. 2006) (quoting Guin v. City of Riviera Beach, 388 So. 2d 604, 606 (Fla.
Dist. Ct. App. 1980)). “The usual measure of damages for trespass to real property is
the difference in value of the property before and after the trespass.” Horn v. Corkland
Corp., 518 So. 2d 418, 420 (Fla. Dist. Ct. App. 1988); see also Atlantic C.L.R. Co. v.
Rutledge, 156 So. 563, 565 (Fla. 1935); Leonard v. Nat Harrison Assoc., Inc., 122 So.
2d 432, 433 (Fla. Dist. Ct. App. 1960) (“[T]he plaintiff is entitled to at least nominal
damages on proof of entry without consent.”). If a plaintiff fails to prove actual
damages, “the plaintiff is entitled to a judgment for nominal damages and costs.” Bolus
v. Morrison Homes, Inc., No. 808CV1957T23TBM, 2009 WL 4730601, at *4 (M.D. Fla.
Dec. 9, 2009) (citing State v. Sarantopoulos, 604 So. 2d 551, 555 n.7 (Fla. Dist. Ct. App.
1992)). Damages for emotional harm are “outside the scope of the proper measure of
damages for trespass.” Jacobini v. JP Morgan Chase, N.A., No. 6:11-CV-231-ORL-31,
2012 WL 252437, at *4 (M.D. Fla. Jan. 26, 2012) (quoting Coddington v. Staab, 716
So.2d 850, 851 (Fla. Dist. Ct. App. 1998)).

9

The Court has already ruled that the negligence claims may go forward.
17

The Delks’ response provides no authority to support an award of damages for
loss of use, 10 emotional distress, and pain and suffering in connection with their
trespass claims. (Doc. 69 at 22.) Moreover, Florida courts have delineated the measure
of damages for trespass to real property. Accordingly, Bank of America’s motion is
granted to the extent the Delks seek damages for emotional distress and pain and
suffering in connection with their trespass claims. This ruling does not affect the
measure of damages the Delks may pursue under their negligence counts.
D.

Attorney’s Fees and Costs

While the Delks suggest in their response that they will be entitled to costs and
attorney’s fees under Federal Rule of Civil Procedure 54(d) (Doc. 69 at 22), they
withdrew that request at the November 16, 2015 hearing, and thus the issue is moot.
Accordingly, it is hereby
ORDERED:
1.

Defendant Bank of America’s Motion for Partial Summary Judgment

(Doc. 68) is GRANTED as to Counts V and VI (IIED) and DENIED as to Counts III
and IV (negligence).
2.

Should the Delks prevail on their trespass claims at trial, they are limited

to a recovery of nominal, property, and punitive damages.

Because the Delks have not supported their claim of loss of use damages
under their trespass counts, the Court need not determine whether a trespass claim
allows loss of use damages in these circumstances. Cf. Stockman v. Duke, 578 So. 2d
831, 832 (Fla. Dist. Ct. App. 1991).
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3.

By January 21, 2016, the Delks’ counsel shall explain the deficiencies

noted in footnotes 1-4 of this Order.
4.

Before proceeding to trial, the parties should conduct a settlement

conference with a mediator of their choice or the Magistrate Judge. No later than
January 21, 2016, the parties should file a notice either identifying a mediator or
asking the Magistrate Judge to conduct a settlement conference. If the case does not
settle, the Court will set the case for pretrial conference and trial.
DONE AND ORDERED in Jacksonville, Florida the 6th day of January, 2016.

sj
Copies to:
Counsel of record

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