VAN NORTWICK, J.

Don G. McCoy (McCoy), Charles Voorhis, Larry L. Lee, Gary Walsingham, and Harvey Hollingsworth, derivatively on behalf of nominal defendant Magic Broadcasting, LLC (Magic),1 a Florida limited liability company (LLC), appeal a final order granting summary judgment in favor of Michael E. Durden (Durden), Durden Enterprises II, Inc. (DE2), a Delaware corporation, and Durden Enterprises, LLC (DE1), a Florida limited liability company, appellees, in the appellants' action for breach of fiduciary duty and an accounting. Because there are numerous questions of material fact relating to whether the appellees breached their duty of loyalty under the Florida Limited Liability Company Act (LLC Act), section 608.4225, Florida Statutes (2011),2 as modified by the operating agreement for Magic, the trial court erred in granting summary judgment. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

Background

The appellants were members of Magic, which was formed to acquire and operate radio stations. DE1 and DE2 were lenders which financed the business operations and capital investment for Magic. Durden is the principal individual behind DE1 and DE2. Earl Durden, the now-deceased father of Michael Durden, originally formed DE1 and is discussed in the record and briefs, but he is not a party to this action. Magic's board is comprised of five directors, all of whom are deemed LLC managers of Magic, but only some of whom are also members of the LLC. The initial five-person board directors of Magic were Earl Durden, Michael Durden, Scott Helms (all of whom represented the interests of DE1 and DE2), McCoy, and James Milligan.

In January 2006, Magic purchased two California radio stations utilizing a loan of $65 million from DE1. Earl Durden, either individually or through entities created by him, held the greatest equity interest in Magic at the time of the loan. Magic defaulted on the loan from DE1 in 2007. An extension of this loan was granted and another default occurred in 2008. At the time of the 2008 default, the promissory note was owned by DE2, as successor to DE1. Appellants allege these defaults resulted from the Durdens' nefarious influence on the operations of Magic. It is undisputed that, as a condition of refinancing, DE2 required that the Board of Magic accept the terms of an amended operating agreement. At that time, the Durdens still owned the largest equity interest in Magic. It is also undisputed that all LLC members of Magic knew of the contents of the operating agreement and the potential conflicts of interest that would arise from the creditor-debtor relationship between DE2 and Magic. The LLC members approved the new operating agreement and a new credit agreement was entered between DE2 and Magic.

The credit agreement provides that "Durden Enterprises II, Inc. [DE2], or its Affiliates, in its capacity as a member, shall have the right to designate three representatives [to the board of directors] who initially will be Earl Durden, Michael Durden, and Scott Helms (the `Durden Managers')." According to McCoy's affidavit (and not otherwise disputed), Michael Durden became CEO of Magic by virtue of DE2's control of the board.3 McCoy's affidavit states that Durden immediately began taking actions that were intentional, unreasonable, and unfair to Magic, and that his actions constituted bad faith and were intended to set Magic up for financial failure. McCoy asserts that Durden's actions materially adversely affected the business of Magic. The affidavit states that, at a Magic board meeting on May 17, 2010, the Durden-led board discussed McCoy's proposal to acquire Magic for $62 million and rejected the proposal. McCoy states that during the meeting, Durden stated that "[W]e would never sell the stations to McCoy." The affidavit states that the board neither considered any of the factors set forth in paragraph 5.6 of the operating agreement nor followed the procedures required by that section. McCoy asserts that it was clear that Durden never intended to abide by the principles of good faith and fair dealing by meaningfully considering McCoy's proposal.

McCoy avers that the board agreed to sell Magic's California stations to an out-side party, SoCal935 LLC ("SoCal935"), for approximately $35 million. McCoy asserts that the SoCal935 proposal was vastly inferior to his, because the offer by SoCal935 was $27 million less than McCoy's offer and, under the SoCal935 offer, Magic would remain liable for the balance of the DE2 loan. The SoCal935 agreement was never consummated and the stations were never sold.

The McCoy affidavit states that to further impair Magic, the Magic board sold the Dothan, Alabama radio station cluster for $1.85 million in 2011. McCoy asserts that Magic had originally invested $12 to $16 million in those stations and that they had a value of at least $6 million when Durden caused them to be sold. He states that there was no reasonable, rational reason to sell the stations for such a low price and that selling the stations at such a low price was unfair, unreasonable, and contrary to the Magic operating agreement.

Appellants, as members of Magic, filed a derivative action against the appellees seeking, in Count I, damages for negligently breaching the duty of care owed to all members of Magic; in Count II, damages for breaching a fiduciary duty owed to Magic and its members; and, in Count III, an accounting.

In September 2012, appellees filed their motion for summary judgment and supporting affidavit. In February 2013, appellants filed a memorandum in opposition to the motion for summary judgment and supporting affidavit. In appellants' memorandum in opposition, appellants withdrew their negligence claim (Count I) and their claims related to misconduct occurring prior to the adoption of the amended operating agreement.

On April 8, 2013, the trial court entered the order granting summary final judgment in favor of the appellees. The trial court concluded that there was no genuine issue of material fact and that, as a matter of law: (1) appellees did not violate the duty of loyalty imposed by section 608.4225, Florida Statutes, and the operating agreement; (2) appellees did not commit "willful misconduct" in violation of their fiduciary duties; (3) Durden was immune from personal liability because the Magic board, of which he was a member, appointed him as CEO of the company, in which capacity he committed the tortious acts; and (4) lenders (DE1 and DE2) could not be liable for breach of fiduciary duties. This appeal ensued.

Fiduciary Duty

Under Florida's common law, the Florida Supreme Court has defined the concept of fiduciary duties broadly reflecting its historical origin in equity. In Quinn v. Phipps, 93 Fla. 805, 113 So. 419 (1927), a case involving allegations that a real estate broker had violated his fiduciary duty, the Court explained the basis of the duty:

Id. at 420-21; see also Doe v. Evans, 814 So.2d 370, 374 (Fla.2002) (quoting Restatement (Second) of Torts § 874 cmt. a) ("A fiduciary relation exists between two persons when one of them is under a duty to act for or to give advice for the benefit of another upon matters within the scope of that relation.").

As early as 1907, the Court recognized that under the Florida common law a director was in a fiduciary relationship with the corporation. See Jacksonville Cigar Co. v. Dozier, 53 Fla. 1059, 1065-68, 43 So. 523, 525 (1907). Other early Florida cases described the relationship between a corporation and its directors and officers as involving:

Orlando Orange Groves Co. v. Hale, 107 Fla. 304, 313-14, 144 So. 674, 677 (1932) (citations omitted). Florida courts have continued to describe the duties of a director and an officer to the corporation as arising from trust and equity concepts. In Snead v. U.S. Trucking Corp., 380 So.2d 1075, 1078-79 (Fla. 1st DCA 1980), we explained:

(citation omitted).

In short, Florida courts have recognized that corporate officers and directors owe both a duty of loyalty and a duty of care to the corporation that they serve. See Cohen v. Hattaway, 595 So.2d 105 (Fla. 5th DCA 1992); B & J Holding Corp. v. Weiss, 353 So.2d 141 (Fla. 3d DCA 1978).4

Although unrelated to fiduciary duty concepts, Florida courts have also recognized that "[e]very contract includes not only its written provisions, but also the terms and matters which, though not actually expressed, are implied by law, and these are as binding as the terms which are actually written or spoken." First Nationwide Bank v. Florida Software Servs., Inc., 770 F.Supp. 1537, 1542 (M.D.Fla. 1991). One of the implied contract terms recognized in Florida law is the implied covenant of good faith, fair dealing, and commercial reasonableness. Cox v. CSX Intermodal, Inc., 732 So.2d 1092, 1097 (Fla. 1st DCA 1999); see also Scheck v. Burger King Corp., 798 F.Supp. 692, 700 (S.D.Fla.1992); First Nationwide Bank, 770 F.Supp. at 1542; Green Companies, Inc. v. Kendall Racquetball Invs., Ltd., 560 So.2d 1208, 1210 (Fla. 3d DCA 1990); Fernandez v. Vazquez, 397 So.2d 1171, 1173-74 (Fla. 3d DCA 1981). This implied covenant arises because "[a] contract is an agreement whereby each party promises to perform their part of the bargain in good faith, and expects the other party to do the same." First Nationwide Bank, 770 F.Supp. at 1544. Thus, the implied covenant of good faith and fair dealing is designed to protect the contracting parties' reasonable expectations. Cox, 732 So.2d at 1097.

Cox described the covenant as a constraint upon the discretion granted to one party under the terms of the contract. Id. at 1097-98.

Id. Although the covenant arises from a contract, the implied covenant of good faith and fair dealing cannot be used to vary the express terms of a contract. Id. at 1098; see also Mount Sinai Med. Ctr. of Greater Miami, Inc. v. Heidrick & Struggles, Inc., 188 Fed.Appx. 966 (11th Cir. 2006).

The LLC Act

The LLC Act has codified the law of fiduciary duties in an LLC. Under section 608.4225(1), Florida Statutes (2011),

The LLC Act has restricted the duty of loyalty, however. Under subsection 1(a) of section 608.4225,

Section 608.4225(1)(b) also limits the duty of care to refraining from engaging in grossly negligent or reckless conduct, intentional misconduct, or a knowing violation of law. Section 608.4225(1)(c) incorporates the concepts of good faith and fair dealing by requiring that each manager and managing member discharge the duties to the LLC and its members under chapter 608 or under the articles of organization or operating agreement and exercise any rights "consistent with the obligation of good faith and fair dealing."

Section 608.4226 addresses conflicts of interest transactions, which it defines in subsection (1) as a:

A conflict of interest is not "either void or voidable because of such relationship" if:

Thus, under section 608.423, members of an LLC can enter into an operating agreement to "establish duties in addition to those set forth in [chapter 608], and to govern relations among the members, managers, and company." § 608.423(1), Fla. Stat. (2011). Nevertheless, under section 608.423 an operating agreement may not:

The Magic Operating Agreement

Pursuant to section 608.423, the parties entered into an operating agreement which modified the fiduciary duties applicable to Magic. The operating agreement gives effect to the LLC Act and provides guideposts for measuring the conduct of the parties. For example, paragraph 5.4 of the operating agreement generally provides that "[t]he Manager shall exercise the powers granted hereby in a fiduciary capacity and in the best interests of the Company and its Subsidiaries." Nevertheless, paragraph 5.6(a) of the operating agreement provides:

Paragraph 5.6(b) also allows broad discretion to the board:

Section 5.6(c) of the operating agreement sets forth a complex assortment of waivers, acknowledgements, and agreements relating to conflicts of interest and breaches of the duty of care and duty of loyalty. As for a waiver, section 5.6(c) provides that, to the maximum extent permitted by the LLC Act, Magic and each member of Magic waive any claim against each manager and member of Magic and their affiliates for breach of any fiduciary duty to Magic or its members, including claims as may result from a conflict of interest among Magic, the managers, and the members. Further, in section 5.6(c) each member agrees that "in the event of any such conflict of interest, each such Person may act in the best interests of such Person or its Affiliates, employees, agents and representatives."

(emphasis added).

Finally, this section sets forth an example of the type of conflict of interest transaction contemplated by the parties:

Paragraph 5.6(c) also seeks to identify types of conflict of interest transactions that do not violate the duty of care, duty of loyalty, and obligations of good faith and fair dealing under the LLC Act. It expressly provides that those standards will be deemed to be satisfied so long as a Manager or Member believes that the terms of any conflict of interest transaction "were not unfair or unreasonable to the Company ..." and that "this standard is not unreasonable and otherwise complies with section 608.423 of the Act."

Summary Judgment

We review orders granting summary judgment de novo. Dianne v. Wingate, 84 So.3d 427, 429 (Fla. 1st DCA 2012). The court's "task is to determine whether, after reviewing every inference in favor of [a]ppellants as the non-moving party, no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law." Id. "If there is even the slightest doubt that material factual issues remain, summary judgment may not be entered." Alpha Data Corp. v. HX5, L.L.C., 139 So.3d 907, 910 (Fla. 1st DCA 2013). As we have previously instructed:

Feizi v. Dep't of Mgmt. Servs., 988 So.2d 1192, 1193 (Fla. 1st DCA 2008) (quoting Moore v. Morris, 475 So.2d 666, 668 (Fla. 1985)).

We hold disputed issues of material fact remain concerning whether appellees engaged in "willful misconduct" under the operating agreement. We agree with appellants that the trial court either weighed the evidence or summarily drew its own inferences from the evidence by finding as a matter of law and fact that no "willful misconduct" had been committed. Thus, the trial court subjugated the role of the jury to determine issues of fact as to the commission of "willful misconduct." See Taylor v. Wellington Station Condo. Ass'n, Inc., 633 So.2d 43, 44 (Fla. 5th DCA 1994) (stating "[s]ince the Association's motion and complaint requested a finding that Taylor was liable to the Association for willfully breaching his fiduciary duty, the trial court would necessarily have to make a finding that Taylor acted with intent in order to grant the motion.") (emphasis in original).

REVERSED and REMANDED for further proceedings consistent with this opinion.

WOLF, J., concurs, and MARSTILLER, J., dissents with opinion.

MARSTILLER, J., dissenting.

I respectfully dissent, and would affirm the final summary judgment under review, because there remained no factual disputes.

The main alleged breach of fiduciary duty for which Appellants seek recovery is the decision by Michael Durden and other Magic board members (not named in the lawsuit) to reject McCoy's offer to purchase two of Magic's radio stations for $62 million — the same two radio stations Magic bought in part with a $65 million loan from DE1/DE2 — and spin them off to an independent McCoy-created business entity. The considerations for the trial court on Appellees' motion for summary judgment were whether any factual disputes existed, and if not, whether the undisputed facts could support a claim for liability under the pertinent statutory provisions in the Limited Liability Company ("LLC") Act and under the terms of the amended operating agreement approved by the members of Magic. The majority holds that summary judgment was inappropriate here because factual issues remain as to whether "appellees engaged in `willful misconduct' under the operating agreement." (Maj. op. at 17.) I disagree for the following reasons.

Section 5.6 of the agreement contains the operative liability provision, and reads, in pertinent part:

(Underlining in original; italics supplied.)

It is undisputed that neither DE1 nor DE2 holds the capacity of manager for Magic. Consequently, the provision assigning liability for willful misconduct does not apply to those appellees. The trial court was correct to so conclude and enter summary judgment in their favor.

The provision does apply to Michael Durden, who was both a member of Magic's board and its CEO, and, thus, a manager. But the conclusory allegations in McCoy's affidavit, submitted in opposition to Appellees' summary judgment motion, are insufficient to create disputed issues of fact as to willful misconduct by Michael Durden.

Most of the assertions in the affidavit are directed to "the Board" or "the Durdens." Specific to Michael Durden, McCoy averred:

(Emphasis in original.) "Conclusory, general assertions do not create the factual disputes necessary to avoid summary judgment." Ramsey v. Home Depot U.S.A., Inc., 124 So.3d 415, 418 (Fla. 1st DCA 2013). All of the above-quoted statements are merely conclusory assertions, and, as such, do not yield factual disputes about alleged willful misconduct by Michael Durden.

Appellants' main contention in this lawsuit is that "the Board, led and controlled by Michael Durden," wrongfully rejected McCoy's proposal to buy the two Los Angeles radio stations for $62 million in favor of another proposal for only $35 million. But even assuming this assertion concerning a decision by the board could serve as grounds for Michael Durden, individually, to be held liable for willful misconduct, Appellants alleged no specific facts establishing that such misconduct occurred.

McCoy's affidavit states, "The Board rejected my proposal out-of-hand, with total disregard of the obligations set forth in Paragraph [sic] Paragraphs 5.1(f), 5.4 and 5.6 of the Amended and Restated Operating Agreement." Paragraph 5.1(f) of the operating agreement states:

Paragraph 5.4 states, in pertinent part, "The Manager shall exercise the powers granted hereby in a fiduciary capacity and in the best interests of the Company and its Subsidiaries."

Paragraph 5.6(c), which defines the duties of care, loyalty, good faith and fair dealing as applied to conflicts of interest, contemplates the very scenario that occurred here, and states:

(Emphasis added.)

Generally asserting that the board disregarded its obligations under paragraphs 5.1(f) and 5.4 of the operating agreement does not, without more, give rise to a material factual dispute. Indeed, it is unclear how paragraph 5.1(f) even applies to the board decision at issue; McCoy's affidavit provides no specifics. Similarly, the affidavit merely asserts that "The Board did not consider any of the factors set forth in Paragraphs 5.6 of the Amended Operating Agreement[.]" Not only is the assertion conclusory, and, therefore, incapable of creating a material factual dispute, paragraph 5.6(c) does not, by its plain terms, require consideration of any particular factors, such that failure to consider them could constitute willful misconduct.

Furthermore, none of the allegations in McCoy's affidavit demonstrate how the 48-month-option-to-purchase proposal would have been of greater benefit to Magic than the competing proposal, except to say that "[t]he Socal935 proposal was vastly inferior because the offer by Socal935 was 27 million less than my [McCoy's] offer, and Magic would still have been liable for the remainder of the Durden Enterprises Loan." Appellants' complaint indicates the Socal935 proposal was for $5 million cash at closing plus a $30 million note (held by which entity, it is not known) at six percent interest. The McCoy proposal, on the other hand, did not include immediate purchase of the Los Angeles radio stations. Rather, McCoy's newly-created independent entity would manage the two stations for a period of 48 months, during which time this entity would keep all revenues attributable to the stations; the new entity would make graduated interest-only payments to Magic, but not beginning until the seventh month; at the end of the 48-month period the new entity would have the option to purchase the stations for $62 million; that the $62 million would constitute payment in full of Magic's indebtedness to DE2, even if there remained a balance; and DE2's interests in Magic would be acquired by McCoy's new entity. Given the latitude and discretion the board had under paragraph 5.6(c) to reject McCoy's proposal despite any apparent conflict of interest, McCoy's affidavit simply fails to support a charge of willful misconduct.

Absent some specific, non-conclusory allegation of willful misconduct by Michael Durden, there was no factual dispute precluding summary judgment in his favor. And the trial court correctly found that the undisputed facts failed to establish a basis for holding Michael Durden liable to Appellants.

For the foregoing reasons, the final summary judgment the trial court entered in Appellees' favor is correct, and this court should affirm.