IN THE CIRCUIT COURT, FOURTH JUDICIAL CIRCUIT, IN AND FORDUVAL COUNTY, FLORIDA

CASE NO.: 16-2013-CA-7407 XXXX MADIVISION: CV-F

BERNARD ALBERT KRUIDBOS,Plaintiff,

vs.

ANGELA B. COREY, in her official capacity asSTATE ATTORNEYF OR THE FOURTHJUDICIAL CIRCUIT OF FLORIDA,

Florida.______________________________________/

ORDER GRANTING PLAINTIFF’S MOTION TO DISMISSAMENDED COUNTERCLAIM WITH PREJUDICE

This cause came on to be heard upon the Plaintiff/Counterdefendant’s Motion to Dismiss

Amended Counterclaim. The Defendant/Counterplaintiff has attempted to state a cause of action

for a tort known as “breach of duty of loyalty.” Every case of which this Court is aware

regarding such tort concerns former employees obtaining an unfair competitive advantage over

their former employer. Sub judice, the Counterplaintiff urges the Court to expand the tort of

“breach of duty of loyalty” to include additional matters. The Counterplaintiff advised the Court

that she is not seeking to state a cause of action for “breach of duty of loyalty” based on any

competitive advantage that could be obtained by the Counterdefendant against the

Counterplaintiff. This Court is unwilling, without authority, to broaden the tort to include the

plaintiff’s additional theory.

Count II of the Amended Counterclaim relies on proof of the allegations in Count I. The

parties agreed that if Count I is dismissed, Count II should likewise be dismissed. The Court

finds that because of the facts to which the parties have agreed, the problems existing in the

Amended Counterclaim cannot be cured by filing a Second Amended Counterclaim.

Prior to the hearing, the Court became concerned that the Counterplaintiff, in her

capacity as State Attorney for the Fourth Judicial Circuit of Florida, may not have standing to

bring a civil lawsuit/civil counterclaim for civil damages. See State v. General Development

Corporation, 469 So.2d 1381 (Fla. 1985) (affirming State v. General Development Corp., 448

So.2d 1074 (Fla. 2nd DCA 1984)); State ex rel. Smith v. Jorandby, 498 So.2d 948 (Fla. 1986),

and State ex rel Smith v. Brummer, 426 So.2d 532 (Fla. 1982). Although Florida Statutes

specifically grant the Counterplaintiff the authority to bring foreclosure actions in civil court, the

Court can find no similar grant of authority by statute or otherwise to bring the counterclaim in

the instant case. Accordingly, the Court requested that the parties provide memoranda of law

regarding the issue of standing.

The Plaintiff, however, has not challenged the Counterdefendant’s standing to file the

counterclaim and the Court declines to go forward on that issue on its own motion. In any event,

this order may render that issue moot.

The Court having benefit of memoranda of law, research, argument of counsel and being

otherwise advised in the premises, it is

ORDERED AND ADJUDGED that Counts I and II of the Amended Counterclaim are

hereby dismissed with prejudice because the Counterplaintiff has failed to state a cause of action

for “breach of duty of loyalty” and she will be unable to state such a cause of action if allowed to

file a Second Amended Counterclaim; and, according to both parties, Count II cannot stand

without Count I.

DONE AND ORDERED in Chambers at Jacksonville, Duval County, Florida this 22nd

day of June, 2015.

s/ Tyrie W. Boyer_______________________CIRCUIT JUDGE

Copies to:Wesley F. White, Esq. – wfwhite@gmail.comRobert G. Riegel, Jr., Esq. – Robert.riegel@bipc.com