JANE GENTILE, APPELLANT,
v.
RANDALL RODRIGUEZ, ET AL., APPELLEES
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Gentile appealed the dismissal of her fourth amended complaint against three defendants. The court affirmed dismissal of claims against Rodriguez and Kavulich but reversed dismissal of the legal malpractice claim against her own attorney Quinones, finding it adequately alleged all required elements.
The court affirmed dismissal of the rescission claim against Rodriguez and the fraud claim against Kavulich, but reversed dismissal of the legal malpractice claim against Quinones because that claim adequately pleaded all required elements.
[1] A claim for rescission of an agreement based on alleged misrepresentations by a third party fails if the plaintiff does not allege facts establishing a legal relationship…
[2] A fraud claim based on a broken promise is insufficient without alleging that the promisor made the representation without any intention of performing the promise.
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Join FLexlaw to unlock all legal intelligence“Failure to state this element is fatal because any alleged misrepresentation by Kavulich must be linked back to Rodriguez in order for Rodriguez to be bound by such representations and thus subject to the agreement's rescission.”
Explains why the rescission claim against Rodriguez failed—lack of legal relationship between Kavulich and Rodriguez
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Join FLexlaw to unlock all legal intelligenceGentile entered into a property rights agreement with Rodriguez, who purchased a home adjacent to Gentile's property. Kavulich represented the sellers…
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PER CURIAM.
In this appeal of an order dismissing a fourth amended complaint, we affirm as to defendants Randall Rodriguez and Jerome Kavulich and reverse as to defendant Washington Quinones based on the following analysis.
Rodriguez bought a home on the north side of Gentile’s property. Kavulich was the attorney who represented the sellers. Gentile filed suit against buyer Rodriguez and sellers’ attorney Kavulich, as well as her own attorney, Quinones, alleging that an agreement she and Rodriguez entered into involving certain property rights was illegal. The sellers are not involved in this suit.
In Count I, Gentile attempted to state a claim for rescission of the property agreement against Rodriguez. Gentile alleged a right to rescission based on alleged misrepresentations made by Kavulich. However, the cause of action fails because it does not allege any facts which would establish a legal relationship between Ka-vulich, the sellers’ attorney, and buyer Rodriguez. Failure to state this element is fatal because any alleged misrepresentation by Kavulich must be linked back to Rodriguez in order for Rodriguez to be bound by such representations and thus subject to the agreement’s rescission. See Crown Ice Mach. Leasing Co. v. Sam Sen-ter Farms, Inc., 174 So. 2d 614 (Fla.2d DCA), cert, denied, 180 So. 2d 656 (Fla. 1965).
In Count III, plaintiff attempted to state a cause of action for fraud against Kavulich. This claim was based on allegations that Kavulich fraudulently induced Gentile to sign the agreement upon the unkept promise that he would insure that next door neighbors on the south of Gentile would sign a corresponding document granting Gentile an easement on a portion of their property. The claim cannot stand, however, because it totally fails to allege the essential element that Kavulich made the representation without any intention of performing his promise. Failure to set forth this element of the cause of action is fatal to Count III. First Interstate Dev. Corp. v. Ablanedo, 476 So. 2d 692 (Fla. 5th DCA 1985), approved in part, quashed in part, 511 So. 2d 536 (Fla.1987); Bernard Marko & Assoc., Inc. v. Steele, 230 So. 2d 42 (Fla.3d DCA 1970).
On the other hand, Count II was wrongly dismissed since it does state a cause of action for legal malpractice against defendant Quinones, the attorney who represented Gentile in the transaction. All the required elements of such a claim are alleged, i.e. Quinones owed Gentile a duty, the duty was breached, and Gentile suffered injury as a result. E.g., Riccio v. Stein, 559 So. 2d 1207 (Fla.3d DCA), review dismissed, 567 So. 2d 436 (Fla.1990).
Affirmed in part, reversed in part and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Robert J. Brennan, M.D. v. Ruffner, 640 So. 2d 143 (Fla. 4th DCA 1994)…lements: the attorney’s employment, the attorney’s neglect of a reasonable duty and that such negligence resulted in and was the proximate cause of loss to the plaintiff. Bolves v. Hullinger, 629 So. 2d 198 (Fla. 5th DCA 1993); Gentile v. Rodriguez, 583 So. 2d 382 (Fla. 3d DCA 1991); Riccio v. Stein, 559 So. 2d 1207, (Fla. 3d DCA), rev. dismissed, 567 So. 2d 436 (Fla. 1990). Florida courts have uniformly limited attorney’s liability for negligence in the performance of their professional duties to clients wit…
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Eastern Cement v. Halliburton Co., 600 So. 2d 469 (Fla. 4th DCA 1992)…e to do so was lacking. There being no evidence from which this court can discern an intent on the part of the seller not to fulfill the contract when it was formed, I would affirm the directed verdict on this ground also. See Gentile v. Rodriguez, 583 So. 2d 382, 383 (Fla.3d DCA 1991) (a count alleging fraudulent inducement in signing an agreement properly dismissed since it totally failed to allege that the representation was made without any intention of performing the promise); Century Properties, Inc. v…
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Jefferis v. MAY, 603 So. 2d 84 (Fla. 5th DCA 1992)…positive intention not to perform it. See also Sleight v. Sun and Surf Realty, Inc., 410 So. 2d 998, 998 (Fla. 3d DCA 1982) (“A false statement amounting to a promise to do something in the future is not actionable fraud.”). In Gentile v. Rodriguez, 583 So. 2d 382 (Fla. 3d DCA 1991), the Third District held that the complaint failed to state a cause of action where the complaint failed to state that the representation made was made without any intention of performing the promise. In Palmer v. Santa Fe Healthc…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- First Interstate Dev. Corp. v. Ablanedo, 511 So. 2d 536 (Fla. 1987)
- Crown ICE Mach. Leasing Co. v. SAM Senter Farms, Inc., 174 So. 2d 614 (Fla. 2d DCA 1965)
- Bernard Marko & Assocs., Inc. v. Morton Steele and Lester Segerman, 230 So. 2d 42 (Fla. 3d DCA 1970)
- Riccio v. Stein, 559 So. 2d 1207 (Fla. 3d DCA 1990)
- Borden v. Sakolsky, 180 So. 2d 656 (Fla. 1965)
- Crown Ice Mach. Leasing Co. v. Sam Senter Farms, Inc., 180 So. 2d 656 (Fla. 1965)
- First Interstate Dev. Corp. v. Ablanedo, 476 So. 2d 692 (Fla. 5th DCA 1985)