Florida Litigation Guide

Fraud -

[1] Elements and Case Citations

(1) Defendant made a false statement regarding a material fact;

(2) Defendant knew or should have known the representation was false;

(3) Defendant intended that the representation induce plaintiff to act on it; and

(4) Plaintiff suffered damages in justifiable reliance on the representation.

The elements of claims for fraud in the inducement, fraud in the performance, fraudulent misrepresentation and negligent misrepresentation are identical and differ only by the underlying facts supporting each claim. Compare Pulte Home Corp. v. Osmose Wood Preserving, Inc., 60 F.3d 734, 742 (11th Cir. 1995) (fraud in the inducement), with Baggett v. Electricians Credit Union, 620 So. 2d 784, 786 (Fla. 2d DCA 1993) (negligent misrepresentation), and Johnson v. Davis, 480 So. 2d 625, 627 (Fla. 1985) (fraudulent misrepresentation). The economic loss doctrine bars claims for fraud in the performance, but not claims for fraud in the inducement. See Williams Elec. Co., Inc. v. Honeywell, Inc., 772 F. Supp. 1225, 1238 (N.D.Fla. 1991). Fraud is also known as the tort of deceit. See Crown Eurocars, Inc. v. Schropp, 636 So. 2d 30, 37 (Fla. 2d DCA 1993), aff’d, 654 So. 2d 1158 (Fla. 1995).

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Florida State Courts

Supreme Court: Johnson v. Davis, 480 So. 2d 625, 627 (Fla. 1985)

First District: Connecticut General Life Ins. Co. v. Jones, 764 So.2d 677, 682 (Fla.1^st DCA 2000)

Second District: Gandy v. Trans World Computer Tech. Group, 787 So. 2d 116, 118 (Fla. 2^nd DCA 2001).

Third District: Brooks Tropicals, Inc. v. Acosta, 959 So. 2d 288, 294-95 (Fla. 3^rd DCA 2007)

Fourth District: Madness, L.P. v. DiTocco Konstruction, Inc., 873 So. 2d 427, 429 (Fla. 4th DCA 2004).

Fifth District: Simon v. Celebration Co., 883 So. 2d 826, 832 (Fla. 5th DCA 2004)

Florida Federal Courts

Eleventh Circuit: Mergens v. Dreyfoos, 166 F.3d 1114, 1117 (11th Cir. 1999)

Southern District: Jackson v. Bellsouth Telecomm., Inc., 181 F. Supp.2d 1345, 1361, n.14 (S.D. Fla. (2001)

Middle District: Badillo v. Playboy Entm't Group, Inc., No. 8:04CV591T30TBM, 2006 WL 785707, *5 (M.D. Fla. Mar. 28, 2006)

Northern District: Williams Elec. Co., Inc. v. Honeywell, Inc., 772 F. Supp. 1225, 1237 (N.D. Fla. 1991)

References

Restatement (Second) of Torts § 525 (1977 Amendment)

[2] Defenses to Claims for Fraud

(1) Fla. R. Civ. P. 1.110(d) (pleading affirmative defenses), and other standard defenses. See § 60.

(2) Statute of Limitations: § 95.11(3)(j), Fla. Stat. (four years).

(3) The statute of repose provides that a claim for fraud must be commenced ``within 12 years after the date of the commission of the alleged fraud, regardless of the date the fraud was or should have been discovered’’. See § 95.031(2)(a), Fla. Stat.

(4) Mere opinions or misrepresentations of law are not actionable. See e.g., Bailey v. Trenman, Simmons, Kemker, Scharf, Barkin, Frye & O’Neil, 938 F. Supp. 825, 829 (S.D. Fla. 1996).

(5) False statements regarding promised future action are not actionable unless the promisor had no intentions of performance at the time of the representation. See Thor Bear, Inc v. Crocker Mizner Park, Inc., 648 So. 2d 168, 172 (Fla. 4th DCA 1994).

(6) Reliance on misrepresentations are unreasonable where the statements are contained in a subsequent written agreement between the parties. See Barnes v. Burger King Corp., 932 F. Supp. 1420, 1427 (S.D. Fla. 1996).

(7) Waiver is a defense to fraud when the allegedly defrauded party had actual or imputed knowledge of the facts supporting the fraud claim. See Coral Gables Imported Motorcars, Inc. v. Fiat Motors of North America, Inc., 673 F.2d 1234, 1240 (11th Cir. 1982), cert. denied, 459 U.S. 1104 (1983).

(8) Fraudulent misrepresentations do not result from a seller’s puffery in stating opinions or commendations about a product’s value. See Wasser v. Sasoni, 652 So. 2d 411, 412 (Fla. 3d DCA 1995).

(9) When concurrent with a claim for breach of contract, no claim for fraud will lie unless “there is damage due to fraud that is separate from damages resulting from any subsequent contractual breach.” Argonaut Dev. Group, Inc., SWH Funding Corp., 150 F. Supp. 2d 1357, 1363 (S.D. Fla. 2001).

(10) To assert the defense of fraud, the party must allege with specificity the relevant facts and circumstances supporting the defense, as well as all of the essential elements of fraudulent conduct. Zikofsky v. Robby Vapor Systems, Inc. 846 So.2d 684, 685 (Fla. 4^th DCA 2003)

(11) When the fraud relates to the performance of the contract, the economic loss doctrine will limit the parties to their contractual remedies. However, when fraud occurs in the connection with misrepresentations, statements, or omissions which cause the complaining party to enter into a transaction, then such fraud is fraud in the inducement which is not limited by the economic loss doctrine, but survives as an independent tort. D&M Jupiter, Inc. v. Friedopfer, 853 So.2d 485, 487-88 (Fla. 4th DCA 2003).

(12) A party cannot recover for fraudulent oral representations which are covered in or contradicted by a later written agreement. Giallo v. New Piper Aircraft, Inc. 855 So.2d 1273, 1275 (Fla. 4th DCA 2003).