Fraud claims are hard to prove. Any fraud claim or claim predicated on a misrepresentation is an intentional tort; therefore, it requires proof that the defendant had the intent to induce the plaintiff to act on a misrepresentation and the plaintiff actually relied on and acted on the misrepresentation. While fraud-type claims are perhaps commonly pled, pleading a fraud-type claim and proving a fraud-type claim are two different things. A party can plead a fraud-type claim to get passed a motion to dismiss. Proving the fraud-type claim, however, is a different story. Plaintiffs need to understand the elements they are required to prove so they know the evidence they need to introduce at trial to satisfy the elements and, hence, their required burden of proof. Likewise, defendants also need to understand the elements so that they can move for a directed verdict and preserve any appellate issue. 

An example of the difficulty in proving a fraud claim can be found in Arlington Pebble Creek, LLC v. Campus Edge Condominium Association, Inc., 42 Fla. L. Weekly D2370a (Fla. 1^st DCA 2017).   Here, the defendants converted an apartment complex into a condominium and sold the condominium units. The unit owners took control of the condominium association from the defendants. The association then sued the defendants claiming that they knew of water intrusion problems, failed to fully remedy the problems, and turned over the association to the unit owners knowing the association would incur huge expense in upkeep and preserving common areas.

The association sued the defendants for both fraudulent misrepresentation and negligent misrepresentation.

A claim for fraudulent misrepresentation requires the association to prove the following four elements: 1) the defendants committed a false statement of a material fact (a misrepresentation); 2) the defendants knew the representation was false; 3) the defendants intended that the misrepresentation would induce the association to act on it; and 4) the association was injured acting in reliance on the misrepresentation. Arlington Pebble Creek, supra.

A claim for negligent misrepresentation requires the association to prove the following four elements: 1) the defendants committed a false statement of material fact that they believed to be true but was in fact false (a misrepresentation); 2) the defendants should have known the representation was false; 3) the defendants intended to induce the association to act on the misrepresentation; and 4) the association acted in justifiable reliance on the misrepresentation causing injury to the association. Arlington Pebble Creek, supra.

During trial, the defendants moved for a directed verdict arguing the plaintiff failed to prove all of the elements of a fraudulent or negligent misrepresentation claim. “‘A direct verdict is proper when the evidence and all inferences from the evidence, considered in the light most favorable to the non-moving party, support the movant’s case as a matter of law and there is no evidence to rebut it.’” Arlington Pebble Creek, supra, quoting Wald v. Grainger, 64 So.3d 1201, 1205 (Fla. 2011).  The trial court denied the defendants’ motion for a directed verdict and ultimately a jury verdict and final judgment was entered against the defendants. The defendants appealed the trial court’s denial of their motion for directed verdict.  

The appellate court reversed the final judgment directing the trial court to enter judgment in favor of the defendants because the association did not prove all of the required elements of either a fraudulent misrepresentation or negligent misrepresentation claim. Specifically, the association failed to prove the third and fourth elements of the claims.   The association failed to prove any evidence of intent by the defendants or that the defendants induced reliance by the association—there was also no evidence that the association actually relied on any misrepresentation.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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There are times I hear that because the “bad” appellate case is in another appellate district compared to the appellate district where my case is located, that “bad” case is not binding. This sentiment is not necessarily true, particularly if there are no interdistrict conflicting opinions relating to the “bad” appellate case (and, more appropriately, the legal issue that “bad” case deals with).   This was explained by the Florida Supreme Court in Pardo v. State, 596 So.2d 665, 666-67 (Fla.1992):

This Court has stated that “[t]he decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by this [Florida Supreme] Court.” Stanfill v. State, 384 So.2d 141, 143 (Fla.1980). Thus, in the absence of interdistrict conflict, district court decisions bind all Florida trial courts. Weiman v. McHaffie, 470 So.2d 682, 684 (Fla.1985). The purpose of this rule was explained by the Fourth District in State v. Hayes:

The District Courts of Appeal are required to follow Supreme Court decisions. As an adjunct to this rule it is logical and necessary in order to preserve stability and predictability in the law that, likewise, trial courts be required to follow the holdings of higher courts—District Courts of Appeal. The proper hierarchy of decisional holdings would demand that in the event the only case on point on a district level is from a district other than the one in which the trial court is located, the trial court be required to follow that decision. Alternatively, if the district court of the district in which the trial court is located has decided the issue, the trial court is bound to follow it. Contrarily, as between District Courts of Appeal, a sister district’s opinion is merely persuasive.

333 So.2d 51, 53 (Fla. 4^th DCA 1976).

In other words, and further noted by the Florida Supreme Court, “Absent an opinion from this Court, all trial courts in this State would be bound by the opinion of the First District [or any appellate district] until there is a contrary decision from the appellate court in their own district.” Charles v. Southern Baptist Hospital of Florida, Inc., 209 So.3d 1199, n.2 (Fla. 2017).

Also, federal district and circuit court cases (absent the United States Supreme Court) are not binding precedent on trial courts. Rather, they are persuasive authority. See State Farm Mut. Auto. Ins. Co. v. Edge Family Chiropractic, P.A., 41 So.3d 293, 297 (Fla. 1^st DCA 2010) (“First, the [federal] cases are not binding precedent; they are, at most, persuasive authority.”); Roland v. Fla. East Coast Ry., LLC, 873 So.2d 1271, n.5 (Fla. 3d DCA 2004) (“This court is bound by decisions of the United States Supreme Court and the Florida Supreme Court. Decisions of the federal courts of appeals are persuasive but not binding.”) (internal citation omitted).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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When a party files a motion that the opposing party perpetuated a fraud on the court, they are looking for the court to sanction the opposing party, with the harsh remedy of striking the opposing party’s pleadings.

Fraud on the court is described as:

The requisite fraud on the court occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.

Perrine v. Henderson, 85 So.3d 1210, 1211-22 (Fla. 5^th DCA 2012) quoting Cox v. Burke, 706 So.2d 43, 46 (Fla. 5^th DCA 1998) (dismissing plaintiff’s case after finding by clear and convincing evidence that plaintiff engaged in fraud on the court by evading or stymying discovery of material facts). Fraud is a serious crime that can effect a lot of people’s lives, if you are in need of a Private Investigator New Orleans as that is where a fraudulent crime was committed then please get in contact with Catalystpi, they will be able to offer you support and a helping hand in this distressing time. They can offer you all the support you need to take the load off you.

Fraud on the court is analogous to the adage, “Cheating is a choice, not a mistake.” Hence, if you deliberately lie and stymie the discovery of facts central to the dispute, you are materially cheating, because you are preventing the opposing party from ascertaining those central facts and fully evaluating and analyzing the issues in dispute.

Dismissing an action, however, is a very harsh remedy to be used sparingly unless clear and convincing evidence supports “the most blatant showing of fraud, pretense, collusion or other similar wrongdoing.” Ibarra v. Izaguirre, 985 So.2d 1117, 1119 (Fla. 3d DCA 2008) (reversing dismissal of action since clear and convincing evidence did not exist to warrant dismissal). Although, the court can certainly entertain other less harsh sanctions.

The burden supporting fraud on the court with clear and convincing evidence is on the party filing the motion. Villansenor v. Martinez, 991 So.2d 433, 436 (Fla. 5^th DCA 2008). Such a finding requires an evidentiary basis / hearing. See id.; Ramey v. Haverty Furniture Companies, Inc., 993 So.2d 1014, 1018 (Fla. 2d DCA 2008). But if an evidentiary hearing is not requested, it is incumbent on the party claimed to have perpetuated a fraud on the court to request an evidentiary hearing. Obregon v. Corp., 42 Fla. L. Weekly D2347A (Fla. 3d DCA 2017) (finding that plaintiff failed to preserve lack of evidentiary hearing for appellate review on a motion to dismiss for fraud on the court by not objecting and not presenting any counter evidence).

Bottomline: Do not engage in fraud on the court. Just do not make this deliberate choice! Ultimately, the facts are what they are and a theory of the case needs to be developed based on that evidence. Cases and the credibility of witnesses need to be assessed based on those facts.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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An attorney’s opportunity to question prospective jurors (the jury venire) is an important part of the trial process. This is known as voir dire. Attorneys want to ask tailored questions to determine those persons in the venire that should be stricken for cause, those for which they should exercise a peremptory challenge, and those, quite frankly, they want to sit on the jury panel. There is strategy involved including wanting to develop a rapport with jurors. These are the potential folks that will render a verdict in the case and analyze the factual evidence based on the law (jury instructions). Having the opportunity to speak to them and ask them questions cannot be overlooked! Parties need a reasonable opportunity to ask prospective jurors questions during voir dire.

An important part of voir dire is to figure out biases of potential jurors. Obviously, if a juror cannot truly be impartial or fair based on their preconceived biases, then an attorney will want them stricken for cause. But in order to truly determine whether a juror has a bias that should render them stricken for cause, both sides need the reasonable opportunity to question the venire. Otherwise, the determination of a juror’s prejudicial bias will be one-sided based on one side’s questioning without any context from the questions the opposing side will ask.

In recent case, Irmi v. Estate of Dale Moyer, 42 Fla. L. Weekly, D2156b (Fla. 4^th DCA 2017), dealing with wrongful death associated with cigarette smoking, the plaintiff’s counsel asked the venire whether they felt that if someone has been smoking essentially all of their life whether their family should not be allowed to file suit against the tobacco companies. Numerous jurors felt that the family should not be allowed to sue in this scenario. Such jurors were then asked whether this belief was strongly held and if they had a reasonable doubt whether they could set this feeling aside (establishing the bias of the jurors). The defense counsel wanted the opportunity to question such jurors in private to see if any of them could be rehabilitated (so they are not stricken for cause) but the court would not allow this. The defense counsel then wanted the opportunity to speak with the entire venire panel before the court struck jurors for cause based on their bias regarding long term cigarette smoking. The court denied this, over the defense counsel’s objection, and allowed approximately 30 jurors to leave without the defense ever questioning them.

After a jury verdict was entered for the plaintiff, the defendant moved for a new trial arguing that the court erroneously dismissed jurors for cause after the plaintiff’s questioning during voir dire without ever allowing the defense to question these jurors. The trial court recognized this error and granted a new trial because the court prevented the defense from its reasonable opportunity to question jurors about biases based on the plaintiff’s voir dire questioning. The plaintiff appealed the trial court’s granting of a new trial.

When an appellate court reviews a trial court’s order granting a new trial, it is done under a limited abuse of discretion standard of review. “A trial court’s discretion to grant a new trial is of such firmness that it would not be disturbed except on a clear showing of abuse.” Irmi, supra, quoting Thigpen v. United Parcel Servs., Inc., 990 So.2d 639, 645 (Fla. 4^th DCA 2008).

Here, the trial court granted a new trial because it realized it excused jurors for cause based on bias without allowing the defense the opportunity to ever question these jurors. “When a trial court is deciding whether to excuse a juror for bias, the test is whether the juror possesses the state of mind necessary to render a verdict in accordance with the evidence and not based upon preconceived opinions.” Irmi, supra (internal quotation and citation omitted). This means that each side – both the plaintiff and defense – must be given an opportunity to orally question jurors so that the entire context of the juror’s answers can be considered. “A trial court must excuse a juror where there is reasonable doubt whether the juror is impartial. To determine whether such reasonable doubt exists, the trial court should consider the context and entirety of the juror’s responses.” Irmi, supra (internal quotation and citation omitted).

In this situation: “The trial court had the unique perspective to reflect upon its own decision to eliminate thirty-one people from the venire without allowing the defense to ask a single question. We provide great deference to trial courts in making such decisions. We agree with the trial court in correcting its initial error and granting a new trial.” Irmi, supra.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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