LINDI DIANA WADLINGTON, APPELLANT,
v.
CONTINENTAL MEDICAL SERVICES, INC., CENTRAL LAB, INC., D/B/A CONTINENTAL MEDICAL LABORATORIES, AND ARMANDO VICENTE, JR., APPELLEES

Fla. 4th DCA | 2005-07-27
No. 4D04-1591
GUNTHER, WARNER and POLEN, JJ., concur.
907 So. 2d 631 Florida District Court of Appeal, Fourth District (2005) Positive Treatment
Cited by 28 cases

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Holding

A promise made without the intention of performing it can constitute actionable fraud, and a corporate director can be held personally liable for such fraud.


Headnotes

[1] A promise to perform a material matter in the future, made without any intention of performing or with the positive intention not to perform, can form the basis for a fra…

[2] A present misrepresentation concerning a future intent may form the basis for actionable fraud where the party making the misrepresentation is aware at the time that it i…

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Facts & Procedural History

Plaintiff alleged a director of two medical companies promised her a commission for research and data, but had no intention of paying it. The trial co…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

The appellant, Lindi Wadlington, appeals the final summary judgment entered following the dismissal of her complaint for failure to state a cause of action against Armando Vicente, Jr. for fraudulent and negligent misrepresentation. We reverse the final summary judgment as to the fraudulent misrepresentation claim and remand. As to all other issues, we affirm.

In her third amended complaint, Wad-lington alleged Vicente, the director in two, now dissolved, medical services companies, hired her to conduct research and supply data in order for Vicente to submit a bid for a State contract. Within the count sounding in fraud, and in relevant part, Wadlington claimed: “Armando Vicente, Jr. stated to Plaintiff that she would be paid [a six percent commission] by Defendants at the time the state contract was approved.” Further, Wadlington alleged that at the time “Armando Vicente, Jr., made the above promises and representations to Plaintiff, and before the oral contract with Plaintiff was entered into, he had no intention of performing the act of providing Plaintiff a six percent (6%) eom-mission/finder’s fee at the time when the contract was approved by the State.”

To state a legally viable claim for fraud, four elements must be sufficiently alleged:

(1) a false statement concerning a specific material fact; (2) the maker’s knowledge that the representation is false; (3) an intention that the representation induces another’s reliance; and (4) consequent injury by the other party acting in reliance on the representation.

Cohen v. Kravit Estate Buyers, Inc., 843 So. 2d 989, 991 (Fla. 4th DCA 2003) (quoting Lopez-Infante v. Union Cent. Life Ins. Co., 809 So. 2d 13, 15 (Fla. 3d DCA 2002)); see also Samuels v. King Motor Co. of Fort Lauderdale, 782 So. 2d 489, 497 (Fla. 4th DCA 2001). In the instant case, the issue is whether Wadlington alleged that Vicente made a false statement to Wad-lington concerning a specific material fact.

As a general rule, “a false statement of fact, to be a ground for fraud, must be of a past or existing fact, not a promise to do something in the future.” Vance v. Indian Hammock Hunt & Riding Club, Ltd., 403 So. 2d 1367, 1371 (Fla. 4th DCA 1981) (citing 27 Fla. Jur.2d, Fraud and Deceit, § 24).

An exception to this general rule is that “where the promise to perform a material matter in the future is made without any intention of performing or made with the positive intention not to perform” a cause of action for fraud may proceed to a jury. Id. at 1372 (citing Home Seekers’ Realty Co. v. Menear, 102 Fla. 7, 135 So. 402 (1931)); see also Bongard v. Winter, 516 So. 2d 27, 27 (Fla. 3d DCA 1987) (“[A] present misrepresentation concerning a future intent may form the basis for actionable fraud where the party making the misrepresentation is aware at the time that it is in fact false.”) (citing Vance, 403 So. 2d at 1372; Travelodge Int’l, Inc. v. Eastern Inns, Inc., 382 So. 2d 789, 791 (Fla. 1st DCA 1980), and Ashland Oil, Inc. v. Pickard, 269 So. 2d 714, 721 (Fla. 3d DCA 1972), cert. denied, 285 So. 2d 18 (Fla.1973)).

As noted above, the third amended complaint specifically alleged that Vicente made a false statement to her that she “would be paid said fee by Defendants at the time the state contract was approved.” Additionally, Wadlington specifically alleged Vicente “had no intention of performing the act” when the representation was made. These allegations are sufficient to meet the exception to the rule because “the promise of future action [was] made with no intention of performing or with a positive intention not to perform.” Thor Bear, Inc. v. Crocker Mizner Park, Inc., 648 So. 2d 168, 172 (Fla. 4th DCA 1995).

Based on the plain language in the complaint, the representation of future action was the promise to pay the commission at a specific point in time.1 The second part of the exception requires the plaintiff to allege the defendant had no intention to perform at the time the representation was made, and Wadlington specifically alleged Vicente had no intention of performing that act at the time the representation was made. This sufficiently states a claim for fraud. Whether Wadlington can present sufficient evidence of the misrepresentation or the intent to not perform is of no moment at this procedural juncture, as those are questions of fact to be determined by a jury. See D & M Jupiter, Inc. v. Friedopfer, 853 So. 2d 485 (Fla. 4th DCA 2003) (“As a general rule, it is a matter for the jury to determine if an intentional misrepresentation has been made.”); see also Cohen, 843 So. 2d at 991 (“In fraud cases, summary judgment is rarely proper as the issue so frequently turns on the axis of the circumstances surrounding the complete transaction, including circumstantial evidence of intent and knowledge.”); Iasigi v. Brown, 58 U.S. 183, 196, 17 How. 183, 15 L.Ed. 208 (1854) (reversing a summary disposition of a fraud case where third party representations were made concerning the solvency of two companies, and holding that whether evidence was sufficient proof of an intention “to deceive and mislead the plaintiffs” is for the jury to consider and decide).

We reject Vicente’s alternate argument for affirmance because a corporate director, acting as a representative of his corporations, can be held personally liable for fraud. See First Fin. USA, Inc. v. Steinger, 760 So. 2d 996, 998 (Fla. 4th DCA 2000) (finding “[fjraud in the inducement is a recognized intentional tort that can subject a corporate officer to individual liability”) (citing La Pesca Grande Charters, Inc. v. Moran, 704 So. 2d 710 (Fla. 5th DCA 1998)). “It is well-settled ... that individual officers and agents of a corporation may be held personally liable for their tortious acts, even if such acts were committed within the scope of their employment or as corporate officers.” Id. at 997-98 (citing Orlovsky v. Solid Surf, Inc., 405 So. 2d 1363 (Fla. 4th DCA 1981)).

Reversed and Remanded.

GUNTHER, WARNER and POLEN, JJ., concur. . Wadlington also argues that Vicente committed fraud by inferring that his companies had the ability to pay the commission/finder’s fee at a certain time, thus falsely representing the companies were fiscally sound. These allegations are not based on material representations made by Vicente, but instead are based on inferences and supposition, which are not sufficient to trigger the exception to the rule.


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Citator

Cited By (20 total)

  • Rhodes v. O. Turner & Co., LLC, 117 So. 3d 872 (Fla. 4th DCA 2013)
    …(2) the maker’s knowledge that the representation is false; (3) an intention that the representation induces another’s reliance; and (4) consequent injury by the other party acting in reliance on the representation. Wadlington v. Cont’l Med. Servs., 907 So. 2d 631, 632 (Fla. 4th DCA 2005). We find that Rhodes’s complaint does not meet the standard set forth in Eagletech. The complaint makes a general allegation of fraud: [*877] The Defendants used deceit in making false representations to the Plaintiff that…
  • Bank OF Am. v. Bank OF Salem & Mace David Howell, III, 48 So. 3d 155 (Fla. 1st DCA 2010)
    …ct will not serve as a predicate for a claim of fraud sufficient to support the imposition of a constructive trust. See Palmer v. Santa Fe Healthcare Sys., Inc., 582 So. 2d 1234, 1236 (Fla. 1st DCA 1991); Wadlington v. Continental Med. Servs., Inc., 907 So. 2d 631, 632 (Fla. 4th DCA 2005). As noted, the trial court imposed a constructive trust on $400,000 of the proceeds Bank of America recovered from the sheriffs sale of the Condo and ordered Bank of America to pay that amount to Bank of Salem. We disagree…
  • Eagletech Commc'ns, Inc. v. Bryn Mawr Inv. Grp., Inc., 79 So. 3d 855 (Fla. 4th DCA 2012)
    …rms of the three rounds of funding. Those allegations, however, were all insufficiently pled. Many of the statements were simply inactionable as either statements of opinions or promises of future action. See Wadlington v. Cont'l Med. Servs., Inc., 907 So. 2d 631, 632 (Fla. 4th DCA 2005) (“As a general rule, a false statement of fact, to be a ground for fraud, must be of a past or existing fact, not a promise to do something in the future.” (citation and quotation marks omitted)). To the extent that some of…

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