Kevin O'Halloran v. First Union National Bank , 322 F. App'x 900 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 10, 2009
No. 07-15139 THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. 01-01779-CV-T-17-EAJ
KEVIN O'HALLORAN,
as Chapter 11 Trustee for Greater
Ministries International, Inc., et al.,
Plaintiff–Appellant,
WILLIAM C. SMITH, an individual, suing
on behalf of himself and all persons
similarly situated,
JOHN TINGUE, an individual, suing
on behalf of himself and all persons
similarly situated,
Plaintiffs,
versus
FIRST UNION NATIONAL BANK OF FLORIDA,
and it successor in name or interest,
a banking entity,
Defendant–Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 10, 2009)
Before BARKETT, HILL and ANDERSON, Circuit Judges.
PER CURIAM:
Kevin O’Halloran, the Chapter 11 Trustee for Greater Ministries
International, Inc. appeals the dismissal of his third amended complaint consisting
of five counts against First Union National Bank of Florida. We find it unnecesary
to repeat the facts of this case which are set forth in our prior opinion in
O’Halloran v. First Union Nat’l Bank of Fla., 350 F.3d 1197 (11th Cir. 2003). We
affirm.
We readily find that there was no reversible error as to the dismissal of the
first four counts of the Complaint. To prevail on these counts the plaintiff had to
show the existence of a special relationship between Greater Ministries and First
Union other than the existence of a general account. The agreement pertaining to
the account in question demonstrated that it was a general checking account. More
importantly, O’Halloran conceded in his brief that it was a general account.
Therefore, O’Halloran could not state a claim on these counts.
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The remaining count, count five, alleged the negligent performance of duties
voluntarily undertaken. Under Florida law, the failure to perform a voluntarily
assumed duty can give rise to liability. See Brown v. City of Delray Beach, 652
So. 2d 1150, 1153 (Fla. Dist. Ct. App. 1995); Hartley v. Floyd, 512 So. 2d 1022,
1024 (Fla. Dist. Ct. App. 1987). In both of these cases, the defendants promised to
undertake a duty on the plaintiffs’ behalf, and failed to perform it, giving rise to
liability for their negligence. Brown, 652 So. 2d at 1152; Hartley, 512 So. 2d at
1024.
In this case, Gerald Payne, presented to the bank a facially genuine
authorization to withdraw funds from the subject account. O’Halloran essentially
alleges that because First Union was suspicious of Payne’s activities, it voluntarily
undertook the duty of confirming his authorization to withdraw funds from the
account. This case differs from any of the Florida cases cited in that it is
undisputed that First Union did not explicitly promise Greater Ministries that the
bank would take any steps other than the ordinary duties owed to the owner of a
general account, namely, ensuring that persons seeking to make withdrawals are
facially authorized to do so. First Union did not promise to undertake any duty on
another’s behalf. Rather, the actions undertaken by the bank were taken on its own
behalf and there is no other party to whom it is alleged that First Union made any
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promise. Thus, we find no error in the dismissal of the remaining count five.
AFFIRMED
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