Billington v. Ginn-La Pine Island , 192 So. 3d 77 ( 2016 )

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
IAN T. BILLINGTON,
Appellant,
v. Case No. 5D14-2177
GINN-LA PINE ISLAND, LTD, LLLP, ET AL.,
Appellees.
________________________________/
Opinion filed May 20, 2016
Appeal from the Circuit Court
for Lake County,
Michael G. Takac, Judge.
Philip K. Calandrino, and Thomas S. Dolney,
of Calandrino Law Firm, P.A., d/b/a Small
Business Counsel, Winter Park, for Appellant.
Darryl M. Bloodworth, of Dean, Mead,
Egerton, Bloodworth, Capouano & Bozarth,
P.A., Orlando, Lubert-Adler Partners, L.P.,
Dean Adler, and Ira Lubert, for Appellees.
Lawrence H. Kunin and Robert P. Alpert, of
Morris, Manning Martin, LLP, Atlanta, GA, for
Appellees, Ginn-La Pine Island LTD., LLLP,
Ginn-Pine Island, GP, LLC and Ginn
Development Company, LLC.
TORPY, J.
This dispute arises from the sale and purchase of two high-end residential lots.
The lower court dismissed Appellant’s fifth amended complaint for failure to state a cause
of action. Appellees correctly advance several arguments supporting the dismissal, but
we confine our discussion to the effect of the contractual “disclaimer” clauses on the fraud
claims. Concluding that the “non-reliance” and “waiver” components of the disclaimer
clauses negate Appellant’s fraud claims, we affirm. We certify several questions of great
public importance to the Florida Supreme Court because it has not addressed the effect
of disclaimer clauses in this context in nearly 75 years, and its last pronouncement has
resulted in conflicting interpretations. See Oceanic Villas, Inc. v. Godson, 4 So. 2d 689
(Fla. 1941). 1
Appellant, Ian T. Billington, and Appellee, Ginn-LA Pine Island, Ltd., LLLP (“Pine
Island”), executed a $1.35 million contract for the sale and purchase of lot 137 in the Bella
Collina development in Lake County, Florida. The contract contained several disclaimer
clauses relevant to this appeal, including:
14. BROKER AGENCY DISCLOSURE; COMMISSIONS;
DISCLAIMER OF REPRESENTATIONS.
....
NOTE: BEFORE BUYER SIGNS THE CONTRACT, BUYER
SHOULD READ IT CAREFULLY AND IS FREE TO
CONSULT AN ATTORNEY OF BUYER’S CHOICE.
....
1 See infra for a discussion of some of the conflicting interpretations of Oceanic
Villas.
2
c. Buyer understands and acknowledges that the
salespersons representing Seller in connection with this
transaction do not have authority to make any statements,
promises or representations in conflict with or in addition to
the information contained in this Contract and the Community
Documents, and Seller and Broker hereby specifically
disclaim any responsibility for any such statements, promises
or representations. By execution of this Contract, Buyer
acknowledges that Buyer has not relied upon such
statements, promises or representations, if any, and waives
any rights or claims arising from any such statements,
promises or representations.
....
ANY CURRENT OR PRIOR UNDERSTANDINGS,
STATEMENTS, REPRESENTATIONS, AND
AGREEMENTS, ORAL OR WRITTEN, INCLUDING, BUT
NOT LIMITED TO, RENDERINGS OR REPRESENTATIONS
CONTAINED IN BROCHURES, ADVERTISING OR SALES
MATERIALS AND ORAL STATEMENTS OF SALES
REPRESENTATIVES, IF NOT SPECIFICALLY EXPRESSED
IN THIS CONTRACT OR IN THE COMMUNITY
DOCUMENTS, ARE VOID AND HAVE NO EFFECT. BUYER
ACKNOWLEDGES AND AGREES THAT BUYER HAS NOT
RELIED ON ANY SUCH ITEMS.
(Emphasis added). Appellant and Pine Island later executed a $1.64 million contract for
the sale and purchase of lot 439 in the same development. That contract contained
clauses substantially identical to those in the lot 137 contract.
After both transactions closed, Appellant brought suit against Pine Island and
several associated entities and individuals claiming, among other things, that he had been
induced to execute the contracts by fraudulent misrepresentations. Appellant alleged
misrepresentations concerning the ability to construct private boat docks on the lots as
well as the purchase price of other lots sold to different buyers. After numerous
amendments, the trial court dismissed the relevant counts in the fifth amended complaint
3
with prejudice. 2 Appellant initially challenges the propriety of the dismissal, arguing that
the court improperly went beyond the allegations in the complaint. Appellant correctly
argues that he alleged reliance, which is itself a sufficient allegation to survive a motion
to dismiss; however, because Appellant attached the contracts to the complaint, it was
appropriate to dismiss the complaint if the terms of the contracts contradicted the
allegation as pled. See Hillcrest Pac. Corp. v. Yamamura, 727 So. 2d 1053, 1055-56 (Fla.
4th DCA 1999); Harry Pepper & Assocs., Inc. v. Lasseter, 247 So. 2d 736, 736-37 (Fla.
3d DCA 1971). Because the disclaimer clauses in the contracts here contradicted
Appellant’s assertion of actual reliance and effectively waived this claim, we conclude that
dismissal was proper.
There appear to be three categories of disclaimer clauses identified in court
decisions and treatises. First, there are “merger” or “integration” clauses, which are
clauses that purport to make extrinsic agreements unenforceable unless they are
contained within the written contract. Mejia v. Jurich, 781 So. 2d 1175, 1178 (Fla. 3d DCA
2001). These clauses might also contain statements that negate the authority of an agent
to vary the terms of the agreement. See Restatement (Second) of Contracts § 216 cmt.
e (Am. Law Inst. 1981) (observing that merger clause “may negate the apparent authority
of an agent to vary orally the written terms”). Second, there are “non-reliance,” “no-
reliance” or “anti-reliance” clauses, which state that the parties to the contract did not rely
2Although other claims remain pending, we have jurisdiction here because several
parties were completely removed from the action upon dismissal of the pertinent claims.
We also concluded previously, by separate order in this case, that the remaining counts
are separate and distinct for purposes of appellate jurisdiction. See Fla. R. App. P.
9.110(k).
4
upon statements or representations not contained within the document itself. Vigortone
AG Prods., Inc. v. PM AG Prods., Inc., 316 F.3d 641, 644 (7th Cir. 2002). Finally, there
are clauses that purport to waive or release claims for fraud. See, e.g., Tex. Standard Oil
& Gas, L.P. v. Frankel Offshore Energy, Inc., 394 S.W.3d 753, 768 (Tex. App. 2012)
(describing waiver or release as broadest form of disclaimer for fraud). While the
contracts at issue here contain all three of these categories of disclaimers, our decision
turns on the non-reliance and waiver clauses.
In La Pesca Grande Charters, Inc. v. Moran, 704 So. 2d 710, 714 n.1 (Fla. 5th
DCA 1998), this court addressed the subject of non-reliance clauses, stating in dictum
that a contractual agreement to “forego reliance on any prior false representation and limit
. . . reliance to the representations . . . expressly contained in the contract” has the binding
effect of negating an action based on fraud in the inducement. Although some courts
have adopted a contrary approach, 3 this appears to be the rule in the majority of
jurisdictions. See, e.g., Insitu, Inc. v. Kent, 388 F. App’x 745 (9th Cir. 2010) (applying
Washington law, “no-reliance” clause barred claims for fraud and promissory estoppel as
matter of law); Rissman v. Rissman, 213 F.3d 381, 383-84 (7th Cir. 2000) (“non-reliance”
clause precluded claim for securities fraud); Bank of the West v. Valley Nat'l Bank of Ariz.,
3 Some of the contrary authorities decline to enforce non-reliance clauses against
a non-sophisticated party. We cannot discern a logical basis for a distinction based on
the sophistication of the party against whom the clause is sought to be enforced, because
all parties, big and small, are bound by the terms of a contract. In any event, the size of
the transactions here clearly supports the inference that the parties were on equal footing.
Some courts also decline enforcement of clauses lacking in clarity or specificity. Here, the
disclaimers are both clear and specific. The non-reliance language in particular, without
use of legalese, clearly expresses a notion that most contracting parties should
understand. Indeed, the use of a written contract itself should give caution that material
components of the agreement must be expressed in the instrument.
5
41 F.3d 471, 477-78 (9th Cir. 1994) (applying California law, “plain and strong words” of
no-reliance clause precluded fraud claim as matter of law); First Fin. Fed. Sav. & Loan
Ass’n v. E.F. Hutton Mortg. Corp., 834 F.2d 685, 687 (8th Cir. 1987) (disclaimer of reliance
on representation negated claim for fraud); Landale Enters., Inc. v. Berry, 676 F.2d 506,
507-08 (11th Cir. 1982) (applying Alabama law, non-reliance clause negated fraud claim);
LeTourneau Techs. Drilling Sys., Inc. v. Nomac Drilling, LLC, 676 F. Supp. 2d 534, 543
(S.D. Tex. 2009) (applying Texas law, disclaimer of reliance on prior representations
negated claim for fraud); Abry Partners V, L.P. v. F & W Acquisition, LLC, 891 A.2d 1032,
1057-58 (Del. Ch. 2006) (party could not promise not to rely on prior representations and
then “shirk its own bargain” by asserting in lawsuit that it in fact relied); Weinstock v.
Novare Grp., Inc., 710 S.E.2d 150, 155-56 (Ga. Ct. App. 2011) (comprehensive merger
clause with no-reliance provisions negated fraud in inducement claim); Danann Realty
Corp. v. Harris, 157 N.E.2d 597, 598-99 (N.Y. 1959) (no-reliance clause in lease
precluded claim for fraud); Blumenstock v. Gibson, 811 A.2d 1029, 1036 (Pa. Super. Ct.
2002) (party could not sign contract denying reliance on prior representations then later
claim reliance on such representations). 4
4 Some of these decisions couch their holdings in terms of whether there was a
lack of “justifiable” or “reasonable” reliance. That potentially distinguishing feature has no
bearing on our analysis because the disclaimer clauses here establish a lack of actual
reliance. Though not essential to our conclusion, the parties here all agreed in their
briefing that “justifiable” reliance must be established by Appellant. Indeed, Appellant pled
“justifiable reliance” in several paragraphs of the fifth amended complaint. None of the
parties, however, addressed the Florida Supreme Court’s decision in Butler v. Yusem, 44
So. 3d 102 (Fla. 2010), wherein the court stated that “justifiable” reliance is not an element
of a claim for fraud. Id. at 105. We are mindful that our high court does not overrule itself
sub silentio. See Puryear v. State, 810 So. 2d 901, 905 (Fla. 2002). As a result, we must
view Butler’s discussion in context and against the backdrop of earlier cases from our
high court expressing contrary holdings. See, e.g., Avila S. Condo. Ass’n v. Kappa Corp.,
6
347 So. 2d 599, 604 (Fla. 1977) (fraud “complaint [must] alleg[e] reasonable reliance on
material misrepresentations of existing fact”) (emphasis added); Fote v. Reitano, 46 So.
2d 891, 893 (Fla. 1950) (judgment for fraud reversed because plaintiff did not prove
“justified” reliance).
We note that Butler does not mention M/I Schottenstein Homes v. Azam, 813 So.
2d 91 (Fla. 2002), wherein the court framed the question in terms of whether reliance was
“justified” and acknowledged its previous adoption of Restatement (Second) of Torts §
540 (1977). Section 540 contains a corollary to section 537’s requirement of justified
reliance as an element of fraud. The two sections go hand-in-hand. If reliance need not
be “justifiable,” section 540 is unnecessary. See Restatement (Second) of Torts § 540
(1977) (“recipient of fraudulent misrepresentation is justified in relying upon truth,
although he might have ascertained the falsity . . . had he made an investigation”)
(emphasis added); Id. § 537 (“justifiable” reliance must be established to prove fraud).
We interpret Butler to hold that, consistent with the Restatement (Second) of Torts,
a lack of due diligence or investigation into the truth of a representation does not negate
the claim of justifiable reliance. That was the holding in Besett v. Basnett, 389 So. 2d 995,
998 (Fla. 1980), upon which Butler relied. The other case upon which Butler relied,
Johnson v. Davis, 480 So. 2d 625 (Fla. 1985), citing Besett, concluded that “[plaintiffs’]
reliance on the truth of the [defendants’] representation was justified . . .” Id. at 628
(emphasis added). See Peter A. Alces, Law of Fraudulent Transactions § 2:18 & n.57.70
and accompanying text (categorizing Butler at “far end of spectrum” regarding “justifiable”
reliance as modifier of element of fraud). Nevertheless, even if our interpretation of Butler
is incorrect, our conclusion in this case turns on a lack of actual reliance, not necessarily
on whether the reliance was justified or reasonable.
Florida courts, like other jurisdictions, at times use the phrases “justifiable reliance”
and “reasonable reliance” interchangeably when addressing fraud claims. Nearly every
district court has used both such phrases at one time or another. It appears, however,
that the two phrases establish different standards, the latter of which is said to impose a
higher burden on the claimant. See Field v. Mans, 516 U.S. 59, 81 (1995) (“justifiable”
reliance, rather than the heavier burden of “reasonable reliance” must be established to
prove fraud (quoting William L. Prosser, Law of Torts 718 (4th ed.1971) (footnotes
omitted))); accord W. Page Keeton, et al., Prosser and Keeton on Torts 752 (5th ed.
1984); see also In re Vann, 67 F.3d 277, 282-85 (11th Cir. 1995) (adopting “justifiable
reliance” standard in lieu of “actual reliance” or “reasonable reliance”).
We think the “justifiable” standard is a minimally essential filter to preclude fraud
claims where purported reliance strains logic and reason, such as when the
representation is obviously false. As one leading commentary states, the “justifiable
reliance” standard provides “some objective corroboration to plaintiff’s claim that he did
rely.” W. Page Keeton, et al., supra, at 750.
7
Curiously, Appellant cites La Pesca Grande Charters in support of his argument
that his fraud claim is not negated here. In doing so, he contorts a partial quote from the
case, fails to state the holding of the case and ignores the dictum that is directly contrary
to his position. See 704 So. 2d at 714 n.1. Nevertheless, Appellant also relies upon
Oceanic Villas, Inc. v. Godson, 4 So. 2d 689 (Fla. 1941), for the proposition that the
contractual disclaimer clauses in the instant case do not negate a claim for fraud. Oceanic
Villas involved a claim for misrepresentation of past earnings, which purportedly induced
execution of a long-term lease. 4 So. 2d at 690. The lease contained what Appellant
labels a “merger” clause, but which we discern is more akin to a “non-reliance” clause. 5
See id. The trial court dismissed the complaint, apparently based upon the language of
the clause. Id. The Florida Supreme Court quashed the order in part, concluding on
“policy grounds” that the clause did not bar an action for fraud. Id. at 690-91. Although
the court concluded that the clause there did not negate the fraud claim, it recognized
that parties to a contract, “for consideration or expediency,” may include provisions that
render the contract “incontestable on account of fraud.” Id. at 690.
Oceanic Villas has generated considerable confusion in the lower courts, given its
attempt to distinguish Cassara v. Bowman, 186 So. 514 (Fla. 1939), a case decided just
two years earlier. Cassara also involved purported fraud in the inducement of a lease
where the alleged fraud involved misrepresentations concerning the amount of profits,
prior rental receipts and other facts. 186 So. at 514. The supreme court affirmed the
dismissal of a complaint based on an integration clause. Id. Rather than overrule
5The lease stated that “Lessee . . . in executing this lease . . . has not been . . .
influenced by any representations of the Lessors as to . . . earning capacity thereof . . . .”
8
Cassara, in Oceanic Villas, the supreme court distinguished its earlier precedent but not
based on the language used in the disclaimer clauses. Oceanic Villas, 4 So. 2d at 691.
Instead, it stated that the allegations in the complaints in the two cases were “entirely
different.” Id.
Courts have struggled to reconcile and apply Oceanic Villas and Cassara, yielding
conflicting results. For example, a panel of our court previously held that Cassara and
Oceanic Villas are irreconcilable, and that the latter case overruled the earlier one sub
silentio. Deluxe Motel, Inc. v. Patel, 727 So. 2d 299, 301 (Fla. 5th DCA 1999). That
decision involved a merger clause but did not concern non-reliance or waiver of
misrepresentation clauses. The Third District Court of Appeal has followed both cases
with conflicting results. Compare Cas-Kay Enters., Inc. v. Snapper Creek Trading Ctr.,
Inc., 453 So. 2d 1147, 1148 (Fla. 3d DCA 1984) (citing Oceanic Villas for proposition that
“integration clause” does not negate fraud claim), with Weiss v. Cherry, 477 So. 2d 12,
13 (Fla. 3d DCA 1985) (citing Cassara for proposition that fraud claim does not “survive”
integration clause), and Wasser v. Sasoni, 652 So. 2d 411, 413 (Fla. 3d DCA 1995) (citing
Cassara and Weiss for proposition that integration clause negates fraud claim). The Cas-
Kay Enterprises court said that Cassara did not involve a fraud claim. 453 So. 2d at 1148.
One year later in Weiss, involving two of the same panel members, the court relied upon
Cassara and correctly labelled it as a fraud case. 477 So. 2d at 13; see also Beeper
Vibes, Inc. v. Simon Prop. Grp. Inc., 600 F. App’x 314, 318 (6th Cir. 2014) (applying
Florida law, attempting to reconcile Oceanic Villas and Cassara, concluding that former
does not prohibit action for fraud in face of non-reliance clause, but under Cassara, such
claim cannot be proven).
9
Mindful that the Florida Supreme Court does not overrule itself sub silentio, we are
compelled to reconcile Oceanic Villas and Cassara. See, e.g., Puryear, 810 So. 2d at
905 (Florida Supreme Court does not intentionally overrule itself sub silentio). Because
the factual allegations of fraud in the two cases appear identical, the only distinguishing
feature is the language in the disclaimer clauses. In Cassara, the lease contained a
classic “merger” or “integration” clause. 186 So. at 514. The contract in Oceanic Villas
contained a “non-reliance” clause. 4 So. 2d at 690. Accordingly, a superficial resolution
of the apparent conflict between the cases is that a “merger” clause negates a fraud claim
but a “non-reliance” clause does not. Because the contracts at issue here contain both
such clauses, it would follow from Cassara that the “merger” language negates
Appellant’s fraud claim.
The difficulty we have in attempting to reconcile the cases on this basis is that it
defies logic and goes against the grain of virtually all of the cases that have addressed
the distinction between the two types of clauses. These cases have concluded that non-
reliance clauses negate claims for fraud, but integration or merger clauses do not. This
distinction is explained by Judge Posner in Vigortone AG Products, Inc. v. PM AG
Products, Inc., 316 F.3d 641, 644 (7th Cir. 2002). There, he explains that merger or
integration clauses are intended to prevent a party from introducing parol evidence to vary
the terms of a written contract. Vigortone, 316 F.3d at 644. Because fraud is a tort, such
a clause does not negate the tort claim. Id. A “non-reliance” clause, on the other hand,
is intended to “head off the possibility of a fraud suit” by binding the parties to a promise
that they have not relied upon extrinsic representations. Id. The latter negates a claim for
fraud because it constitutes a contractual agreement on one element of a fraud claim—
10
reliance. Id.; see also Restatement (Second) of Contracts § 196 (Am. Law Inst. 1981)
(noting distinction between merger clause and no-reliance clause, the latter negating a
claim for fraud). Indeed, to permit a party to contradict such a promise made in a non-
reliance clause is to sanction a breach of the very contract that is the subject of the
dispute. As New York’s highest court explained:
Were we dealing solely with a general and vague merger
clause, our task would be simple. A reiteration of the
fundamental principle that a general merger clause is
ineffective to exclude parol evidence to show fraud in inducing
the contract would then be dispositive of the issue. . . . To put
it another way, where the complaint states a cause of action
for fraud, the parol evidence rule is not a bar to showing the
fraud—either in the inducement or in the execution—despite
an omnibus statement that the written instrument embodies
the whole agreement, or that no representations have been
made. . . . Here, however, plaintiff has in the plainest language
announced and stipulated that it is not relying on any
representations as to the very matter as to which it now claims
it was defrauded. Such a specific disclaimer destroys the
allegations in plaintiff's complaint that the agreement was
executed in reliance on these contrary oral representations . .
..
Danann Realty Corp., 157 N.E.2d at 599.
Alternatively, even if we assume that Oceanic Villas silently overruled Cassara, we
would reach the same conclusion on the facts of this case. While the Florida Supreme
Court held that the disclaimer clause in Oceanic Villas did not negate the fraud claim in
that case, it nevertheless validated some disclaimer clauses where the parties manifest
the intent to render the contract “incontestable . . . on account of fraud.” Oceanic Villas,
4 So. 2d at 690. The decision draws a distinction between a contractual affirmation that
“no fraud has been committed,” which does not negate a fraud claim, and a contract that
stipulates that, even if a fraud “may have been committed,” such a claim may not be
11
asserted. Id. at 691. We interpret this to mean that an express waiver of the right to
maintain a fraud claim is all that is required to avoid liability for fraud. See id. at 690-91.
If our interpretation is correct, the contracts at issue here do that and much more. Among
other components of the disclaimers is a “waive[r of] any rights or claims arising from any
such statements, promises or representations.”
Accordingly, we hold that the “non-reliance” clauses in this case negate a claim for
fraud in the inducement because Appellant cannot recant his contractual promises that
he did not rely upon extrinsic representations. See, e.g., Wasser, 652 So. 2d at 411. We
also conclude, pursuant to Oceanic Villas, that an express waiver of the right to base a
claim on pre-contract representations renders the contract “incontestable . . . on account
of fraud.” Oceanic Villas, 4 So. 2d at 690. We emphasize that the disclaimer clauses here
are as clear and conspicuous as they are comprehensive. If these clauses are insufficient
to render a claim for fraud “incontestable” within the contemplation of the Oceanic Villas
court, then no disclaimer can possibly accomplish that objective—an objective that is both
reasonable and essential in our complex and litigious society. Written contracts are
intended to head-off disputes. Public policy strongly favors the enforcement of contracts.
Although our decision might benefit those who would use a disclaimer clause to cleverly
avoid the consequences of a deliberate fraud, contracting parties can protect themselves
against such fraudulent practices by respecting the gravity inherent in the contracting
process and carefully reviewing a contract to ensure that material representations are
expressed in the instrument. The law necessarily presumes that parties to a contract have
read and understood its contents. Were we to reach a contrary holding, contracting
parties would have no ability to protect themselves against those who would fabricate
12
claims of fraud to avoid the consequences of a contractual obligation. On balance, the
sanctity of a contract and predictability of an outcome in a dispute should take precedence
where, as here, the parties clearly manifest the intent to avoid such claims. 6
We distinguish Lower Fees, Inc. v. Bankrate, Inc., 74 So. 3d 517 (Fla. 4th DCA
2011), to the extent that the disclaimer language there did not contain a waiver. We
disagree with and express conflict with our sister court’s conclusion that a “non-reliance”
clause does not negate a claim for fraud. We note that an earlier case from the same
court relied in part on an “integration” clause to affirm the dismissal of a complaint for
fraud in the inducement. Yamamura, 727 So. 2d at 1055-56.
We certify the following questions to the Florida Supreme Court as involving great
public importance:
Did the court’s decision in Oceanic Villas, Inc. v. Godson, 4
So. 2d 689 (Fla. 1941), sub silentio overrule its decision in
Cassara v. Bowman, 186 So. 514 (Fla. 1939)?
If Oceanic Villas did not overrule Cassara, does a merger
clause such as that discussed in Cassara, negate a claim for
fraud?
Do clear and unambiguous disclaimer clauses, such as those
in this case, negate or “ma[ke] incontestable” a claim for fraud
as discussed in Oceanic Villas?
6 Appellant argues in the alternative that the misrepresentation regarding the
private boat dock is not negated by the disclaimer because the disclaimer contains an
exception for representations that are contained in the “community documents.” He
asserts in his brief, without citation to the record, that the “community documents . . .
discuss the right of a lakefront owner to build a dock on his property . . . .” The “community
documents” are not in the record and the fifth amended complaint does not contain this
allegation. At oral argument, Appellant acknowledged that this argument is not supported
by the record. Accordingly, we disregard the argument and caution counsel that
unsupported statements of fact in briefs may result in sanctions.
13
Does a clear and unambiguous non-reliance clause negate a
claim for fraud, where one party alleges justifiable reliance on
an extrinsic representation?
Did Butler v. Yusem, 44 So. 3d 102 (Fla. 2010), overrule Fote
v. Reitano, 46 So. 2d 891 (Fla. 1950), and Avila South
Condominium Ass’n v. Kappa Corp., 347 So. 2d 599 (Fla.
1977), and reject Restatement (Second) of Torts § 537, by
holding that reliance need not be justified to maintain a
fraudulent misrepresentation claim?
If Butler did not overrule Fote or Avila, which standard applies
in Florida, “justifiable” reliance or “reasonable” reliance?
AFFIRMED; CONFLICT ACKNOWLEDGED; QUESTIONS CERTIFIED.
PALMER J., and HARRIS, J.M., Associate Judge, concur.
14