STEVEN J. GUTTER, LAWRENCE WEINSTEIN AND MAUREEN WEINSTEIN, HIS WIFE, APPELLANTS,
v.
ROBERT WUNKER, ROBERT A. SMITH, JR., AND JOHN DOES 1 THROUGH 19, D/B/A ENGLISH MCCAUGHAN & O'BRYAN, A FLORIDA PARTNERSHIP, APPELLEES
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Investors in a failed restaurant limited partnership sued lawyers who drafted the offering documents, alleging fraud based on the lawyers' alleged failure to disclose material facts about their involvement in a prior failed restaurant venture. The court reversed dismissal of the fraud claim but affirmed dismissal of the legal malpractice claim.
The court affirmed dismissal of the legal malpractice claim because appellants failed to allege an attorney-client relationship between themselves and appellees. The court reversed dismissal of the fraud claim, holding that appellants' complaint, though inartfully drawn, contained sufficient allegations to state a cause of action for fraud.
[1] A legal malpractice claim requires an attorney-client relationship.
[2] A cause of action for fraud requires a false statement concerning a material fact, knowledge of falsity, intent to induce action, and consequent injury from reliance.
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Join FLexlaw to unlock all legal intelligence“To state a cause of action for fraud, a party must allege: (1) a false statement concerning a material fact; (2) the representor's knowledge that the representation is false; (3) an intention that the representation induce another to act on it; and (4) consequent injury by the party acting in reliance on the representation.”
Establishes the four-element test for fraud that appellants must satisfy
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Join FLexlaw to unlock all legal intelligenceAppellees were lawyers retained by Buxbaum, the promoter of a limited partnership for a restaurant venture that ultimately failed. Appellants were inv…
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PER CURIAM.
Appellants contend the trial court erred when it dismissed their second and third amended complaints and entered a final judgment in favor of appellees. We affirm in part and reverse in part.
Appellees are lawyers who were retained by Buxbaum, the promoter of a limited partnership, to prepare an offering prospectus and other legal documents (hereinafter “limited partnership documents”) for a restaurant venture which ultimately failed. Appellants are investors who purchased interests in this limited partnership.
We affirm the dismissal of appellants’ second amended complaint alleging legal malpractice since appellants have failed to allege an attorney-client relationship. See Angel, Cohen and Rogovin v. Oberon Inv., N.V., 512 So. 2d 192 (Fla.1987) and Espinosa v. Sparber, Shevin, Shapo, Rosen and Heilbronner, 612 So. 2d 1378 (Fla.1993).
Appellants do not base their third amended complaint on legal malpractice. They claim appellees received a finder’s fee for the sale of interests in the limited partnership and that appellees’ failure to disclose certain material facts in the limited partnership documents constituted fraud. Specifically, appellants claim appellees did not disclose their clients’ involvement in a failed restaurant venture in New York, that they relied on the limited partnership documents to their detriment and that they have been damaged by virtue of appellees’ failure to disclose this information.
To state a cause of action for fraud, a party must allege: (1) a false statement concerning a material fact; (2) the repre-sentor’s knowledge that the representation is false; (3) an intention that the representation induce another to act on it; and (4) consequent injury by the party acting in reliance on the representation. Lance v. Wade, 457 So. 2d 1008 (Fla.1984); A.S.J. Drugs, Inc. v. Berkowitz, 459 So. 2d 348 (Fla. 4th DCA 1984). A defendant’s knowing concealment or nondisclosure of a material fact may also support an action for fraud where there is a duty to disclose. See Don Slack Ins., Inc. v. Fidelity & Cas. Co. of N.Y., 385 So. 2d 1061 (Fla. 5th DCA 1980) and RESTATEMENT (SECOND) OF TORTS §§ 550, 551 (1977). Furthermore, where a party in an arm’s length transaction undertakes to disclose in formation, all material facts must be disclosed. Vokes v. Arthur Murray, Inc., 212 So. 2d 906 (Fla. 2d DCA 1986). See also Nicholson v. Kellin, 481 So. 2d 931 (Fla. 5th DCA 1985) and Ramel v. Chasebrook Const. Co., 135 So. 2d 876 (Fla. 3d DCA 1976).
We hold that appellants’ complaint, although inartfully drawn, contains sufficient allegations to state a cause of action for fraud.
Accordingly, we reverse the trial court’s order dismissing appellants’ third amended complaint and remand this cause for further proceedings.
AFFIRMED IN PART; REVERSED IN PART and REMANDED.
DELL, C.J., and STONE and WARNER, JJ., concur.
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R.J. Reynolds Tobacco Co. v. Matilde C. Martin, 53 So. 3d 1060 (Fla. 1st DCA 2010)…s to act; the tobacco companies had a duty to disclose the material fact; and the plaintiffs detrimentally relied on the misinformation. See Friedman v. Am. Guardian Warranty Servs., Inc., 837 So. 2d 1165, 1166 (Fla. 4th DCA 2003); Gutter v. Wunker, 631 So. 2d 1117, 1118 (Fla. 4th DCA 1994). See generally 21 Patrick John McGinley, Fla. Frac., Elements of an Action, § 17:1 (2009-2010 ed.). The civil conspiracy claim required proof that the class defendants agreed to do an unlawful act or to do a lawful act by u…
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Delgado v. J.W. Courtesy Pontiac Gmc-Truck, Inc., 693 So. 2d 602 (Fla. 2d DCA 1997)…complaint also sufficiently alleges that the fraud was comprised of intentionally failing to disclose a material fact concerning the condition of the vehicle in violation of a statutory duty compelling disclosure of that fact. See Gutter v. Wunker, 631 So. 2d 1117, 1118 (Fla. 4th DCA), cause dismissed, 637 So. 2d 235 (Fla.1994); Franklin v. Brown, 159 So. 2d 893, 898 (Fla. 1st DCA 1964). Accordingly, we reverse the trial court’s judgment on the pleadings as to the fraud count. As to the FDUTPA count, we also…
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State v. Mark Marks, P.A., 698 So. 2d 533 (Fla. 1997)…ty has a right to know because of a fiduciary or other relation of trust or confidence between them. Mark Marks, 654 So. 2d at 1189 (citing Chiarella v. United States, 445 U.S. 222, 100 S.Ct. 1108, 63 L.Ed.2d 348 (1980)); see also Gutter v. Wunker, 631 So. 2d 1117, 1118 (Fla. 4th DCA 1994). Because an attorney’s duty to disclose is uncertain under section 817.234(1), the intent element in that statute does nothing to clarify the conduct the statute proscribes. We are still left to wonder in what situations an…
Previewing 3 of 25 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ne. Int'l Airways, Inc. v. Dep't OF Revenue, 457 So. 2d 1008 (Fla. 1984)
- Ramel v. Chasebrook Constr. Co., Inc., 135 So. 2d 876 (Fla. 2d DCA 1961)
- Angel v. Oberon Inv., N.V., 512 So. 2d 192 (Fla. 1987)
- Espinosa v. Sparber, 612 So. 2d 1378 (Fla. 1993)
- Chapnick v. Coleman, 481 So. 2d 931 (Fla. 4th DCA 1985)
- Vokes v. Arthur Murray, Inc., 212 So. 2d 906 (Fla. 2d DCA 1968)
- A.S.J. Drugs, Inc. v. Berkowitz, 459 So. 2d 348 (Fla. 4th DCA 1984)
- DON Slack Ins., Inc. v. Fid. & Cas. Co. of N.Y., 385 So. 2d 1061 (Fla. 5th DCA 1980)