Mettler, Inc. v. Ellen Tracy, Inc., No. 93-02970

CourtCourt of Appeal of Florida (US)
Writing for the CourtQUINCE; ALTENBERND; ALTENBERND
Citation648 So.2d 253
Parties20 Fla. L. Weekly D85 METTLER, INC., a Michigan corporation, Appellant, v. ELLEN TRACY, INC., a New Jersey corporation, and Ellen Tracy, Inc. of Ellenton, Inc., a Florida corporation, Appellees.
Decision Date30 December 1994
Docket NumberNo. 93-02970

Page 253

648 So.2d 253
20 Fla. L. Weekly D85
METTLER, INC., a Michigan corporation, Appellant,
v.
ELLEN TRACY, INC., a New Jersey corporation, and Ellen
Tracy, Inc. of Ellenton, Inc., a Florida
corporation, Appellees.
No. 93-02970.
District Court of Appeal of Florida,
Second District.
Dec. 30, 1994.

Page 254

Stuart Jay Levine of Brown, Clark & Walters, Sarasota, for appellant.

William A. Post, Dunnellon, for appellees.

QUINCE, Judge.

Mettler, Inc. (Mettler), appeals the trial court's dismissal of portions of its original complaint, amended complaint and second amended complaint. We reverse the court's dismissal of counts I, II, and III of the second amended complaint for fraud and breach of contract. We affirm the court's dismissal of count IV of the amended complaint for rescission and count IV of the original complaint for interference with a business relationship.

Mettler, Inc., is a retail store in Sarasota County, Florida. Mettler contracted with Ellen Tracy, Inc. (Ellen Tracy) to purchase for resale substantial quantities of Ellen Tracy products. Mettler alleges Ellen Tracy promised, as an inducement for the contract, it would not sell the same or similar products in Manatee or Sarasota Counties at a reduced price. Ellen Tracy thereafter opened a discount outlet store in Manatee County selling the same or similar products.

On or about August 14, 1992, Mettler filed a five-count complaint against Ellen Tracy, Inc. and Ellen Tracy, Inc. of Ellenton, Inc., for fraud, breach of contract, violation of section 501.201, Florida Statutes (1991), (Florida Deceptive and Unfair Trade Practices Act), intentional interference with a business relationship, and breach of implied warranties. In September 1992 the fraud and breach of contract counts were dismissed

Page 255

without prejudice and the other counts were dismissed with prejudice.

An amended complaint alleging four counts, fraud in the inducement, fraud in the concealment, breach of contract and rescission of the oral contract to purchase, was filed on December 21, 1992. Counts I, II and III of the amended complaint were dismissed without prejudice, and count IV was dismissed with prejudice on March 1, 1993. On March 25, 1993, the second amended complaint was filed alleging fraud in the inducement, fraud in the concealment and breach of contract. This second amended complaint was dismissed with prejudice on June 7, 1993, and a motion for rehearing was denied on August 10, 1993. Mettler timely appealed on August 27, 1993.

In reviewing an order dismissing a complaint for failure to state a cause of action this court must look only to the four corners of the complaint, accepting the allegations of the complaint as true and resolving all reasonable inferences in favor of the plaintiff. Londono v. Turkey Creek, Inc., 609 So.2d 14 (Fla.1992); Orlando Sports Stadium, Inc. v. State ex rel. Powell, 262 So.2d 881 (Fla.1972); Drew v. Knowles, 511 So.2d 393, 395 (Fla. 2d DCA 1987). A motion to dismiss should not be granted on the basis of affirmative defenses unless the affirmative defenses appear on the face of the pleading. Attias v. Faroy Realty Co., 609 So.2d 105 (Fla. 3d DCA 1992); Board of County Com'rs of Polk County, Fla. v. Aetna Cas. & Sur. Co., 604 So.2d 850 (Fla. 2d DCA), review denied, 613 So.2d 2 (Fla.1993).

Applying these principles to the complaint, amended complaint and second amended complaint in the instant case, we conclude the second amended complaint does state a cause of action for fraud in the inducement, fraud in the concealment and breach of contract. While the motion to dismiss attacks the complaint on sufficiency grounds, it does not allege or demonstrate that an affirmative defense appears on the face of the complaint. Our determination must be without regard to any prospective affirmative defense. Warwick v. Post, 613 So.2d 563 (Fla. 5th DCA 1993).

By our holding we do not pass on appellant's likelihood of ultimate success on the merits of the claims nor do we determine the existence or nonexistence of any affirmative defenses. We are concerned that a motion to dismiss not be used as a substitute for a judgment on the pleading or a motion for summary judgment.

Count I of the second amended complaint alleges fraud in the inducement. The elements necessary to state a cause of action for fraud in the inducement are 1) a false statement concerning a material fact, 2) knowledge by the person making the statement that the representation is false, 3) intent by the person making the statement that the representation will induce another to act upon it, and 4) reliance on the representation to the injury of the other party. C & J Sapp Pub. Co. v. Tandy Corp., 585 So.2d...

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25 practice notes
  • In re Standard Jury Instructions—Contract & Business Cases, No. SC12–1931.
    • United States
    • United States State Supreme Court of Florida
    • June 6, 2013
    ...2007); Abbott Laboratories, Inc. v. General Elec. Capital, 765 So.2d 737, 740 (Fla. 5th DCA 2000); Mettler, Inc. v. Ellen Tracy, Inc., 648 So.2d 253, 255 (Fla. 2d DCA 1994); Knowles v. C. I. T. Corp., 346 So.2d 1042, 1043 (Fla. 1st DCA 1977). 2. To maintain an action for breach of contract,......
  • Shukla v. BP Exploration & Oil, Inc., No. 95-3656
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • June 20, 1997
    ...fraudulent inducement under Florida law is the misrepresentation or nondisclosure of a material fact. Mettler, Inc. v. Ellen Tracy, Inc., 648 So.2d 253, 255 8 It is not clear from the opinion why Pride claimed Exxon's failure to disclose was material, but Pride's complaint apparently center......
  • Florida Software Syst. v. Columbia/Hca Healthcare, No. 97-2866-Civ-T-17B.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • April 19, 1999
    ...the statement to induce action; and (4) reliance on the representation to the injury of the other. Mettler, Inc. v. Ellen Tracy, Inc., 648 So.2d 253 (Fla.2d.Dist.Ct.App.1994). When these principles are applied to cases involving false promises, "Florida law treats a promissor's intent as a ......
  • Lennar Homes, Inc. v. Masonite Corp., No. Civ.A. MDL 1098.
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • November 9, 1998
    ...of the warranty,4 the homeowners need not prove reliance to sustain a breach of contract claim. See Mettler, Inc. v. Ellen Tracy, Inc., 648 So.2d 253, 255 (Fla.Dist.Ct. App.1994) (describing elements of breach of contract claim); Caretta Trucking, Inc. v. Cheoy Lee Shipyards, Ltd., 647 So.2......
  • Request a trial to view additional results
25 cases
  • In re Standard Jury Instructions—Contract & Business Cases, No. SC12–1931.
    • United States
    • United States State Supreme Court of Florida
    • June 6, 2013
    ...2007); Abbott Laboratories, Inc. v. General Elec. Capital, 765 So.2d 737, 740 (Fla. 5th DCA 2000); Mettler, Inc. v. Ellen Tracy, Inc., 648 So.2d 253, 255 (Fla. 2d DCA 1994); Knowles v. C. I. T. Corp., 346 So.2d 1042, 1043 (Fla. 1st DCA 1977). 2. To maintain an action for breach of contract,......
  • Shukla v. BP Exploration & Oil, Inc., No. 95-3656
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • June 20, 1997
    ...fraudulent inducement under Florida law is the misrepresentation or nondisclosure of a material fact. Mettler, Inc. v. Ellen Tracy, Inc., 648 So.2d 253, 255 8 It is not clear from the opinion why Pride claimed Exxon's failure to disclose was material, but Pride's complaint apparently center......
  • Florida Software Syst. v. Columbia/Hca Healthcare, No. 97-2866-Civ-T-17B.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • April 19, 1999
    ...the statement to induce action; and (4) reliance on the representation to the injury of the other. Mettler, Inc. v. Ellen Tracy, Inc., 648 So.2d 253 (Fla.2d.Dist.Ct.App.1994). When these principles are applied to cases involving false promises, "Florida law treats a promissor's intent as a ......
  • Lennar Homes, Inc. v. Masonite Corp., No. Civ.A. MDL 1098.
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • November 9, 1998
    ...of the warranty,4 the homeowners need not prove reliance to sustain a breach of contract claim. See Mettler, Inc. v. Ellen Tracy, Inc., 648 So.2d 253, 255 (Fla.Dist.Ct. App.1994) (describing elements of breach of contract claim); Caretta Trucking, Inc. v. Cheoy Lee Shipyards, Ltd., 647 So.2......
  • Request a trial to view additional results

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