MONCO ENTERPRISES, INC.; SHEILA N. BLACKWELL AND SHEILA BLACKWELL AS PERSONAL REPRESENTATIVE OF THE ESTATE OF FERRELL BLACKWELL, APPELLANTS/CROSS-APPELLEES,
v.
ZIEBART CORPORATION, WILLIAM BEAVER, NANCY MCMATH AND GREG LONG, APPELLEES/CROSS-APPELLANTS

Fla. 1st DCA | 1996-03-25
No. 94-3723
BOOTH, MINER and WEBSTER, JJ., concur.
673 So. 2d 491 Florida District Court of Appeal, First District (1996) Positive Treatment
Cited by 22 cases

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Synopsis

The appellate court reversed the trial court's dismissal of fraud and tortious interference claims against a franchisor, finding that fraud in the inducement is an independent tort not barred by the economic loss rule and that the franchisor's alleged interference with business relationships stated a valid cause of action. The court affirmed the denial of the franchisor's motion to dismiss the original complaint.


Holding

The court held that fraud in the inducement is an independent tort that is not barred by the economic loss rule, and that the allegations of tortious interference with prospective business relationships stated a valid cause of action. Therefore, the dismissal of these counts was reversed.


Headnotes

[1] Fraud in the inducement is an independent tort that is not barred by the economic loss rule, even when economic losses are alleged.

[2] A claim for tortious interference with a prospective contractual relationship is generally recognized.

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Key Quotes

“In this instance, however, appellants have pled fraud in the inducement. This court has previously stated that actions for fraudulent inducement and breach of contract are not mutually exclusive.”

Establishes that fraud in the inducement is an independent tort not barred by the economic loss rule.

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Facts & Procedural History

Appellants purchased two Ziebart franchises and subsequently sued Ziebart and its employees, alleging fraud, misrepresentation, conspiracy, and intent…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

In this appeal, Moneo Enterprises and the Blackwells, appellants, argue that the trial court erred by dismissing with prejudice four counts in their Fourth Amended Complaint. On cross-appeal appellees (Ziebart) assert that the court erred in denying a motion to dismiss the original complaint in the action below. Having considered the arguments in the briefs and heard oral argument in the cause, we reverse the dismissal of the complaint and remand for the reasons explained below. We find no merit, however, to the issue raised on cross-appeal and affirm on that issue without further discussion.

Ziebart is the franchisor of businesses that specialize in undercoating vehicles. On December 23, 1987, appellants closed on the purchase of two Ziebart franchises, which were not directly owned-and-operated by Ziebart. Subsequently, appellants filed suit against Ziebart, several of Ziebart’s employ ees, and the brokers who advised appellants on the purchase. The brokers are not parties to the instant appeal but remain parties in the case below. The Fourth Amended Complaint, which is the subject of this appeal, contains five counts, four of which allege torts against Ziebart. Based on appellants’ allegations that Ziebart made misrepresentations that induced appellants to close on the purchase of the franchises, counts one through three allege fraud and misrepreséntation, negligent misrepresentation, and conspiracy. Count five claims Ziebart intentionally interfered with appel-' lants’ business relationships during appellants’ attempts to sell the franchises. The complaint alleges that appellants had negotiated toward a sale with a prospective purchaser for one store when Ziebart contacted this person and told him Ziebart would not approve him as a franchisee. This potential buyer subsequently bought a Zie-bart-owned-and-operated franchise directly from Ziebart. The complaint further alleges that Ziebart contacted another person with whom appellants were negotiating sale of both businesses and sought to persuade this potential buyer to purchase a different Ziebart franchise instead. Upon Ziebart’s motion and after hearing, the trial court dismissed with prejudice all counts as to Ziebart in the Fourth Amended Complaint.

Ziebart argues that appellants’ tort claims in counts one through three of the complaint will not lie as a matter of law under Florida’s economic loss rule, which is that, absent a tort independent of breach of contract, remedy for economic loss lies in contract law. See Casa Clara Condominium Assoc, v. Charley Toppino and Sons, Inc., 620 So. 2d 1244, 1246 (Fla.1993); AFM Corp. v. Southern Bell Tel. & Tel. Co., 615 So. 2d 180 (Fla.1987). In this instance, however, appellants have pled fraud in the inducement. This court has previously stated that actions for fraudulent inducement and breach of contract are not mutually exclusive. Sprayberry v. Sheffield Auto & Truck Service, Inc., 422 So. 2d 1073, 1076 (Fla. 1st DCA 1982) (citing Ashland Oil, Inc. v. Pickard, 269 So. 2d 714 (Fla. 3d DCA 1972)). In the instant case, appellants have pled the independent tort of fraud in the inducement, and the economic loss rule does not bar the action. See Johnson v. Davis, 480 So. 2d 626 (Fla.1985); see also TGI Development, Inc. v. CV Reit, Inc., 665 So. 2d 366 (Fla. 4th DCA 1996) (holding that fraud in the inducement claim for economic losses is independent tort not barred by economic loss rule); HTP, Ltd. v. Lineas Aereas Costarricenses, 661 So. 2d 1221, 1222 (Fla. 3d DCA 1995); Burton v. Linotype Co., 556 So. 2d 1126 (Fla. 3d DCA 1990). To the extent this opinion conflicts with the Second District Court of Appeal’s decision in Wood-son v. Martin, 663 So. 2d 1327 (Fla. 2d DCA 1995), we certify that conflict to the supreme court. See TGI Development, Inc., 665 So. 2d at 366 (certifying conflict on this issue).

We also reverse the trial court’s dismissal of count five of the complaint, which alleges tortious interference with a potential business relationship against Zie-bart. Tort liability for interference with prospective contractual relationships is generally recognized. Frank Coulson, Inc. — Buick v. General Motors Corp., 488 F. 2d 202 (5th Cir.1974). The factual similarity between the instant case and Frank Coulson is instructive. Coulson, the owner of a Buick dealership in Florida, alleged that General Motors, the franchisor, had tortiously interfered with contractual negotiations between Coulson and a potential purchaser of the dealership. The Fifth Circuit stated that when a plaintiff proves a prima facie case of interference, the defendant has the burden of avoiding liability by showing that his conduct is privileged or justified. See Yoder v. Shell Oil Co., 405 So. 2d 743, 744 (Fla. 2d DCA 1981), review denied, 412 So. 2d 470 (Fla.1982) (citing Frank Coulson and stating that the privilege to interfere in a contract because of a financial interest is not unlimited). Accordingly, it is clear in the instant case that appellants have stated a cause of action for tortious interference with a potential business relationship and that any assertion of privilege by Ziebart should be pleaded and proven. The question of whether an action is privileged is a jury question.

Accordingly, the trial court’s dismissal with prejudice of the counts alleging torts against Ziebart is reversed. The cause is remanded for further proceedings consistent with this opinion.

BOOTH, MINER and WEBSTER, JJ., concur.


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Citator

Cited By (12 total)

  • Williams v. Peak Resorts Int'l Inc., 676 So. 2d 513 (Fla. 5th DCA 1996)
    …tort independent of breach of contract, recovery for economic loss must be pursued under contract law. See Casa Clara Condominium Ass’n v. Charley Toppino and Sons, Inc., 620 So. 2d 1244, 1246-47 (Fla.1993); Monco Enterprises v. Ziebart Corporation, 673 So. 2d 491, (Fla. 1st DCA 1996). Florida courts have held that fraud in the inducement is an independent tort, and that recovery under this tort is not barred by the economic loss rule, and this is true irrespective of whether only economic losses are sought.…
  • Nerbonne, N.V. v. Lake Bryan Int'l Props., 689 So. 2d 322 (Fla. 5th DCA 1997)
    …rpreted the economic loss rule as not barring actions for fraud in the inducement, conversion and theft. Woodson v. Martin, 685 So. 2d 1240 (Fla.1996), Burke v. Napieracz, 674 So. 2d 756 (Fla. 1st DCA 1996). Monco Enterprises, Inc. v. Ziebart Corp., 673 So. 2d 491 (Fla. 1st DCA 1996); TGI Development, Inc. v. CV Reit, Inc., 665 So. 2d 366 (Fla. 4th DCA 1996), rev. granted, 684 So. 2d 1350 (Fla.1996). VII.CLAIMS AGAINST HICKMAN The briefs and counterclaim do not make it clear as to the manner in which Hickma…
  • …Where a contract exists, a tort action will lie for either intentional or negligent acts considered to be independent from acts that breached the contract. Tortious interference is such an independent tort. See Monco Enters., Inc. v. Ziebart Corp., 673 So. 2d 491 (Fla. 1st DCA 1996). In count TV, Bankers alleges tortious interference by Av-Med both before and after the termination of their Marketing Agreement. Thus, it states an independent claim which is not barred by the economic loss rule. Count VI asser…

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