STEYR DAIMLER PUCH OF AMERICA, A CORPORATION, APPELLANT,
v.
A & A BICYCLE MART, INC., A FLORIDA CORPORATION, DANIEL R. ALLEGRETTI AND CATHERINE ALLEGRETTI, APPELLEES
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Steyr Daimler Puch sued A & A Bicycle Mart for unpaid merchandise; A & A counterclaimed under Florida's Unfair and Deceptive Trade Practices Act. The trial court allowed an amendment to add a common law fraud count after A & A rested, and the jury found for A & A. The appellate court reversed, finding insufficient evidence of the essential elements of common law fraud.
The court reversed the judgment, finding that the trial court abused its discretion in allowing the late amendment to add a common law fraud count, and that the evidence was insufficient to support common law fraud because there was insufficient evidence of either knowing misrepresentation of specific material facts or justifiable reliance.
[1] A trial court has discretion to grant amendments to pleadings, even during trial, but this liberality decreases as the case progresses.
[2] Common law fraud requires proof of a knowing misrepresentation of specific material facts and justifiable reliance.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Although it is clear that the Court had discretion in granting amendments to the pleadings, even during trial, this liberality diminishes as the case progressed to trial.”
Establishes that while trial courts have discretion to allow amendments, such discretion is limited as trial progresses.
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Join FLexlaw to unlock all legal intelligencePuch sold merchandise to A & A and sued for payment. A & A counterclaimed alleging violation of the Florida Unfair and Deceptive Trade Practices Act. …
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SIMONS, STUART M., Associate Judge.
Appellant (Puch) sold merchandise to appellee (A & A), and thereafter sued for payment. A & A counterclaimed alleging violation of the Florida Unfair and Deceptive Trade Practices Act. After granting summary judgment against A & A for the unpaid balance (subject to whatever result appertained on the counterclaim) and entering default against a guarantor on the account, the case proceeded to trial on the counterclaim. After A & A rested its counterclaim, the Court granted a verdict against it, but subsequently allowed the counterclaimant to amend to raise a count in common law fraud.
The jury returned a verdict for the counterclaimant for compensatory and punitive damages. The guarantor then moved to set aside the default judgment that had previously entered against her on the original amount for the merchandise.
Although it is clear that the Court had discretion in granting amendments to the pleadings, even during trial, this liberality diminishes as the case progressed to trial. Versen v. Versen, 347 So. 2d 1047 (Fla. 4th DCA 1977).
In examining the record of this case, the counterclaimant’s evidence as adduced at trial did not support its claim under the Florida Unfair and Deceptive Trade Practices Act and, moreover, would not support a count in common law fraud. If the matter had proceeded in normal course and the count in common law fraud had been originally pled, the plaintiff would have been forced to allege with par ticularity under Florida Rules of Civil Procedure 1.120(b) the particular acts of fraud upon which it relied. In this case we have merely the statement of counsel at the conclusion of the counterclaimant’s case that “we have a common law fraud. We have pled and proven every count of common law fraud.”
In searching the record for the essential elements of common law fraud, we find them to be lacking. There is insufficient evidence of either a knowing misrepresentation of specific material facts or justifiable reliance sufficient for this type of case. Nantell v. Lim-Wick Construction Company, 228 So. 2d 634 (Fla. 4th DCA 1969). As a general rule fraud cannot be predicated upon a mere promise not performed. 14 Fla.Jur. Section 15. Alexander/Davis Properties v. Graham, 397 So. 2d 699 (Fla. 4th DCA 1981).
The Judgment under review is reversed with instructions to re-enter a judgment for Puch against A & A and against the guarantor. HURLEY and DELL, JJ., concur.
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Singletary v. Yoder's & Ameritrust Ins. Corp., 871 So. 2d 289 (Fla. 1st DCA 2004)…g a fraudulent statement, and subject to sanctions, under section 440.105. Furthermore, the evidence does not support the JCC’s determination that Claimant knowingly made false statements. See Steyr Daimler Puch of Am. v. A & A Bicycle Mart, Inc., 453 So. 2d 1149, 1150 (Fla. 4th DCA 1984). Claimant’s failure to realize she had been injured at work until [*292] 7-10 days after the incident and her consequent delay in reporting her injury does not constitute, alone or together, evidence of fraud. An MRI, taken…
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Stires v. Carnival Corp., 243 F. Supp. 2d 1313 (M.D. Fla. 2002)…ay Hospitality Franchising, Inc., 172 F.Supp.2d 821, 825 (N.D.Tex.2001); Pecarina v. Tokai Corp., No. CUV,01-1655 ADWAJB, 2002 WL 1023153, *8 (D.Minn. May 20, 2002); see generally Steyr Daimler Puch of Am. v. A & A Bicycle Mart, Inc., 453 So.2d 1149 (Fla. 4th DCA 1984). But see Publications Int’l, Ltd. v. Leapfrog Enters., Inc., No. 01C3876, 2002 WL 31426651, *6 (N.D.Ill. Oct.29, 2002); Floorcoverings, Intern., Ltd v. Swan, No. 00C1393, 2000 WL 528480, *5 (N.D.Ill. Apr.25, 2000). St…
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Nationwide Mut. Co. v. Ft. Myers Total Rehab Ctr., Inc., 657 F. Supp. 2d 1279 (M.D. Fla. 2009)…. P. 9(b) applies to FDUTPA, although it recognizes this view is in the minority in this District. Contra Stires v. Carnival Corp., 243 F.Supp.2d 1313, 1322 (M.D.Fla.2002) (citing generally Steyr Daimler Puch v. A & A Bicycle Mart, Inc., 453 So.2d 1149 (Fla. 4th DCA 1984)); Fla. Digital Network, Inc. v. N. Telecom, Inc., 6:06-cv-889-Orl-31JGG, 2006 WL 2523163, 2006 U.S. Dist. LEXIS 61983 (M.D.Fla. Aug. 30, 2006); WrestleReunion, LLC v. Live Nation Tv Holdings, Inc., 8:07-cv-2093-JDW-MS…
Authorities Cited
- Alexander/Davis Props., Inc. v. Graham, 397 So. 2d 699 (Fla. 4th DCA 1981)
- Nantell v. Lim-Wick Constr. Co., 228 So. 2d 634 (Fla. 4th DCA 1969)
- Versen v. Versen, 347 So. 2d 1047 (Fla. 4th DCA 1977)