PATRICK J. FINNEY D/B/A AMERICAN YACHT COMPANY, APPELLANT,
v.
RICHARD FROST, APPELLEE
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A yacht broker was sued for fraudulent misrepresentation after a boat purchased through his agency was later attached and sold to satisfy unpaid repair bills. The appellate court reversed the jury verdict, holding that the plaintiff failed to prove the essential elements of fraud, particularly that the defendant knew bills were unpaid or made false statements to induce the purchase.
The court held that there was insufficient evidence to sustain a verdict for fraud. The evidence failed to establish that the defendant knew the bills were unpaid or that he told the plaintiff the bills were paid to induce the purchase, and thus the plaintiff could not prove the essential elements of fraudulent misrepresentation.
“Fraud, actual or constructive, is not presumed. It must be specifically alleged and proved by clear and convincing evidence.”
Establishes the high evidentiary standard required to prove fraud claims in Florida
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Join FLexlaw to unlock all legal intelligencePlaintiff sought to purchase a boat named 'Marko' being repaired at a boatyard, with defendant as the yacht broker. A sales agreement for $5,500 requi…
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Appellant-defendant appeals from a jury-verdict of $5,580.00 and final judgment thereon in favor of appellee-plaintiff.
Plaintiff sued defendant, a licensed yacht broker, for fraudulent misrepresentation. Without attempting to distinguish differences among boats, yachts and vessels, we find that the record essentially reveals the plaintiff was in the market for a boat. He contacted the defendant and with defendant’s salesman looked at several. The salesman located one named “Marko” which was being repaired at a boatyard. Plaintiff liked it and on advice of the salesman arrived at a sales agreement with the owner for a total purchase price of $5,-500.00, with the agreement calling for $1,-000.00 down and requiring the boat to be free of all liens and encumbrances, and that
“Trial runs, Present work & planned work now being done at Merrits to be completed forthwith at sellers exp., paint color On super structure at buyers option Balance of $4,500.00 to be paid to seller upon completion of work.”
Subsequently, the balance of the sales price was paid and the ownership papers transferred, with the bill of sale stating:
“The sellers further warrant that the said vessel is free and clear of all liens, mortgages, taxes and encumbrances of any nature or kind and hereby agree to indemnify and save harmless, the purchaser against and from any and all claims arising by reason of anything happening or occurring prior to date hereof and all expense in connection therewith.”
Two months later the boat was attached and sold for unpaid bills.
Plaintiff sued defendant for fraudulent misrepresentation, asserting as fraud the false statement of the defendant that all bills were paid when in fact they were not.
Fraud, actual or constructive, is not presumed. It must be specifically alleged and proved by clear and convincing evidence. Thomas v. Pennsylvania Threshermen & Farmers’ Mutual Insurance Co., Fla.App.1964, 167 So.2d 10, and Hester v. New Amsterdam Casualty Co., D.C.1968, 287 F.Supp. 957.
The essential elements of fraud are: (1) a false statement of fact; (2) known by the defendant to be false at the time it was made; (3) made for the purpose of inducing the plaintiff to act in reliance thereon; (4) action by the plaintiff in reliance on the correctness of the representation; and (5) resulting damage to the plaintiff. Tonkovich v. South Florida Citrus Industries, Inc., Fla.App.1966, 185 So.2d 710 (cause remanded 196 So.2d 438 and 202 So.2d 579, Fla.App.1967).
There is no evidence in the record which could sustain a verdict in favor of the plaintiff. The evidence is insufficient to establish that the defendant knew the bills were not paid or that he told the plaintiff that the bills were paid to induce plaintiff to act.
Both plaintiff and defendant had seen what purported to be paid bills. Both knew the boat was being repaired and plaintiff knew from a talk with the owner of the boatyard that the bills on the present work would be large. Nevertheless no one bothered at the time of transfer to check with the boatyard to be sure the bills were paid. Either party could have learned of the status of the bills by a phone call.
Accordingly the final judgment appealed from is reversed and this cause remanded with instructions that the jury verdict be set aside and appropriate judgment be entered in favor of the defendant.
Reversed and remanded.
WALDEN and REED, JJ., concur.
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First Nat'l Bank OF Stuart v. Jackson, 267 So. 2d 697 (Fla. 4th DCA 1972)…ndry v. Sterling Apartments, Inc., Fla.App.1969, 231 So. 2d 225, 227 (cert. den. Fla. 1970, 238 So. 2d 107). For a misrepresentation to support an action for damages, it must be a misrepresentation of a material fact. Finney v. Frost, Fla.App.1969, 228 So. 2d 617. The person charged with the misrepresentation must be shown to have had knowledge of the falsity of the statement at the time it was made or the evidence must show the equivalent of such knowledge which is that the statement was made without knowle…
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Coplan Pipe & Supply Co., Inc. v. Sunrise Point, Inc., 360 So. 2d 36 (Fla. 3d DCA 1978)…tness was attempting to show that the estimate was not his and that he never would have made such an estimate. We agree with the trial judge that there was insufficient proof of fraudulent intent for the issue to go to the jury. Cf. Finney v. Frost, 228 So. 2d 617 (Fla.4th DCA 1969), concerning the degree of proof with regard to fraud. Affirmed.…
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MacMa Corp. v. Sara M. Corp. & Sara Moskin, 463 So. 2d 534 (Fla. 4th DCA 1985)…ns, this does not justify their exclusion. A fraud may consist of a knowing or a reckless misrepresentation. For a misrepresentation to support an action for damages, it must be a misrepresentation of a material fact. Finney v. Frost, Fla.App.1969, 228 So. 2d 617. The person charged with the misrepresentation must be shown to have had knowledge of the falsity of the statement at the time it was made or the evidence must show the equivalent of such knowledge which is that the statement was made without knowle…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Tonkovich v. S. Fla. Citrus Indus., Inc., 185 So. 2d 710 (Fla. 2d DCA 1966)
- Tonkovich v. S. Fla. Citrus Indus., Inc., 202 So. 2d 579 (Fla. 2d DCA 1967)
- S. Fla. Citrus Indus., Inc. v. Tonkovich, 196 So. 2d 438 (Fla. 1967)
- Thomas v. Pa. Threshermen & Farmers' Mut. Ins. Co., 167 So. 2d 10 (Fla. 2d DCA 1964)