NORMAN KUTNER AND HELEN KUTNER, HIS WIFE, APPELLANTS,
v.
LEONARD KALISH AND FRANK KALISH, APPELLEES
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The Kutners appealed the trial court's dismissal of their three-count complaint against the Kalishes for fraudulent misrepresentation, conspiracy, and negligence arising from their investment losses with Herbert Goldberger. The appellate court reversed the dismissal of the fraud count, finding it sufficiently pleaded despite being verbose, but affirmed the dismissal of the conspiracy and negligence counts.
The court reversed the dismissal of Count I (fraud) because the allegations, though verbose, sufficiently stated a cause of action for fraud under Florida law. The court affirmed the dismissal of Count II (conspiracy) as legally insufficient and the dismissal of Count III (negligence/malpractice) as failing to allege sufficient facts and improperly incorporating the other counts.
“In order that fraud be actionable the following elements must be made to appear: (1) a misrepresentation of material fact, (2) [a] knowledge of the representor of the misrepresentation, or, [b] representations made by the representor without knowledge as to either truth or falsity, or, [c] representations made under circumstances in which the representor ought to have known, if he did not know, of the falsity thereof, (3) an intention that the representation induce another to act on it, and (4) resulting injury to the party acting in justifiable reliance on the representation.”
Establishes the four-element test for actionable fraud under Florida law that governed the court's analysis.
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Join FLexlaw to unlock all legal intelligenceThe Kutners invested funds with Herbert Goldberger based on alleged misrepresentations, conspiracy, and negligent advice from the defendants Kalishes.…
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Plaintiffs brought action against the defendants herein, and in a three count complaint sought damages arising out of a loss occasioned when plaintiffs, pursuant to defendants’ alleged fraudulent misrepresentations, conspiracy and grossly negligently given advice, invested funds with one Herbert Goldberger.
Defendants’ motions to dismiss for failure to state a cause of action were sustained. Plaintiffs elected not to amend their complaint within the time allowed and appealed.
In count I of the complaint, plaintiffs attempted to allege a cause based upon legal fraud. It has long been the Florida rule that whenever fraud is relied upon the allegations relating thereto should be specific and the facts constituting the fraud *765clearly stated.1 This position has not been abandoned by the adoption of the Florida Rules of Civil Procedure.2
In order that fraud be actionable the following elements must be made to appear:
(1) a misrepresentation of material fact,
(2) [a] knowledge of the representor of the misrepresentation, or, [b] representations made by the representor without knowledge as to either truth or falsity, or, [c] representations made under circumstances in which the rep-resentor ought to have known, if he did not know, of the falsity thereof,
(3) an intention that the representation induce another to act on it, and
(4) resulting injury to the party acting in justifiable reliance on the representation.3
It is our view that the allegations of count I, although rather prolix, are nevertheless sufficient in law to withstand a motion to dismiss for failure to state a cause of action.4
In testing a complaint against a motion to dismiss the court must take as true all material well pleaded allegations.5 Those allegations are then viewed in light of the applicable substantive law to determine the existence of a cause of action.6
Applying all the above to the case sub judice we find the trial court erred in dismissing count I. In so deciding we do not consider whether portions of said count should be stricken as that question has not yet been determined by the trial court.
Count II of the complaint is legally insufficient to state a cause of action in conspiracy. The rule in Florida is well settled that allegations of conspiracy must be clear, positive and specific.7 The complaint being totally insufficient in that regard it was properly dismissed.
An examination of count III impelís the conclusion that it too fails to allege facts sufficient to state a cause of action in either malpractice or negligence. Furthermore, by incorporating counts I and II in toto into count III plaintiffs have so confused the issues as to render the count virtually impossible to defend against.8
Accordingly the judgment appealed is affirmed in part and reversed in part.
Affirmed in part and reversed in part.
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Citator
Cited By (34 total)
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Atl. Nat'l Bank OF Fla. v. Vest, 480 So. 2d 1328 (Fla. 2d DCA 1985)…in justifiable reliance on the misrepresentation. Alexander/Davis Properties, Inc. v. Graham, 391 So. 2d 699 (Fla. 4th DCA), pet. for rev. denied, 408 So. 2d 1093 (Fla.1981); Joiner v. McCullers, 158 Fla. 562, 28 So. 2d 823 (1947); Kutner v. Kalish, 173 So. 2d 763 (Fla. 3d DCA), cert. denied, 183 So. 2d 210 (Fla.1965). We find two elements missing in Vest’s cause of action. First, the misrepresentation was not one of a material fact.3 A fact is material if, but for the alleged nondisclosure or misrepresentat…
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Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 842 So. 2d 204 (Fla. 3d DCA 2003)…oore, 777 So. 2d 1177, 1179 (Fla. 5th DCA 2001); W.R. Townsend Contracting, Inc. v. Jensen Civil Const., Inc., 728 So. 2d 297, 304 (Fla. 1st DCA 1999); Hillcrest Pacific Corp. v. Yamamura, 727 So. 2d 1053, 1055 (Fla. 4th DCA 1999); Kutner v. Kalish, 173 So. 2d 763 (Fla. 3d DCA 1965). If the fraud occurs in connection with misrepresentations, statements or omissions which cause a party to enter into a transaction, then such fraud is fraud in the inducement and survives as an independent tort. Allen v. Stepha…
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Raoul Vienneau v. Metro. Life Ins. Co., 548 So. 2d 856 (Fla. 4th DCA 1989)…rmeier, 327 So. 2d 245, 246 (Fla. 4th DCA 1976).3 In order to determine the existence of a cause of action, the trial court must examine the complaint’s allegations, taken as true, in light of the applicable substantive law. [*859] Kutner v. Kalish, 173 So. 2d 763, 765 (Fla. 3d DCA), cert. denied, 183 So. 2d 210 (Fla.1965). See also City of Gainesville Code Enforcement Board v. Lewis, 536 So. 2d 1148 (Fla. 1st DCA 1988); Thompson v. Martin, 530 So. 2d 495 (Fla. 2d DCA 1988). Florida has long adhered to the r…
Previewing 3 of 34 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- Vista McCullers Joiner and Alton G. McCullers v. Carson McCULLERS, 158 Fla. 562 (Fla. 1947)
- Renpak, Inc. v. Oppenheimer, 104 So. 2d 642 (Fla. 2d DCA 1958)
- Ocala Loan Co. v. Smith, 155 So. 2d 711 (Fla. 1st DCA 1963)
- Watson v. Jones, 41 Fla. 241 (Fla. 1899)
- Messana v. Maule Indus., 50 So. 2d 874 (Fla. 1951)
- Gair v. Lockhart, 47 So. 2d 826 (Fla. 1950)
- Wilson v. Robinson, 104 So. 2d 124 (Fla. 3d DCA 1958)
- Jackson Mizell and William Mizell v. Upchurch, 46 Fla. 443 (Fla. 1903)
- Nunez v. Alford, 117 So. 2d 208 (Fla. 2d DCA 1960)
- Langston v. Nat'l China Co., 57 Fla. 92 (Fla. 1909)