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ProveMyFloridaCase.com > Posts tagged "fraud"

Possible or Speculative Events do Not Give Rise to Fraudulent Nondisclosure

To prove fraud, a plaintiff MUST prove: 1) a false statement of a material fact by the defendant; 2) the defendant had knowledge that the statement was false; 3) the defendant intended that the statement induce the plaintiff to act on it; and 4) damages by the plaintiff in relying on the defendant's statement.  Pritchard v. Levin, 2020 WL 2050691, *2 (Fla. 3d DCA 2020).      When a fraud claim concerns nondisclosure--a failure to disclose material information--such claim “exists only when there is a duty to make such disclosure.” Id. (citation omitted).  The court determines, as a matter of law, whether a...

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A Misrepresentation is Not the Same as a Breach of Contract

A claim based on a misrepresentation is NOT the same as a claim based on a breach of contract.  Two notes to self one must consider before throwing a misrepresentation-type claim into the fray: First note to self:  when pleading a claim based on a misrepresentation, whether fraudulent misrepresentation, fraudulent inducement, or negligent misrepresentation, it is imperative to plead those misrepresentations with specificity.  See Fla. R. Civ. P. 1.120. Second note to self:  a fraud claim is NOT a replacement to a breach of contract claim. “It is well settled that a party may not recover damages for both breach of contract...

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A General Release is Not Absolute

General releases, unfortunately, are not absolute.  A recent ruling from the Third District Court of Appeal in Falsetto v. Liss, 44 Fla. L. Weekly D1340d (Fla. 3d DCA 2019) confirms this point, although, candidly, I have mixed feelings regarding this ruling.    In this case, the Court held that the term “unknown” in a general release is not synonymous with the term “unaccrued;” thus, a release of an unknown claim does not mean a release of an unaccrued claim.  In theory, this makes sense since a future claim should not be barred.  It is one thing if the facts giving rise...

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Proving ALL of the Elements of a Fraudulent or Negligent Misrepresentation Claim

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...

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Fraud in the Performance of a Contract

Claims for fraudulent inducement and fraudulent misrepresentation are claims that are oftentimes pled despite there being a contract being the parties. Besides these claims being fact-based and challenging to prove in certain instances, they are harder when there is a contract between the parties. Fraud is only actionable if it is separate and distinct from the contract. In other words, fraud needs to give rise to a tort claim independent of the contract; a breach of contract is not fraud because the fraud is not independent of the contractual breach. See Peebles v. Puig, 42 Fla.L.Weekly D1080a (Fla. 3d DCA...

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