Monco Enterprises, Inc. v. Ziebart Corp.
| Decision Date | 25 March 1996 |
| Docket Number | No. 94-3723,94-3723 |
| Citation | 673 So.2d 491 |
| Court | Florida District Court of Appeals |
| Parties | 21 Fla. L. Weekly D755 MONCO ENTERPRISES, INC.; Sheila N. Blackwell and Sheila Blackwell as Personal Representative of the Estate of Ferrell Blackwell, Appellants/Cross-Appellees, v. ZIEBART CORPORATION, William Beaver, Nancy McMath and Greg Long, Appellees/Cross-Appellants. |
An appeal from the Circuit Court for Escambia County. Kenneth L. Williams, Judge.
James M. Wilson of Wilson, Harrell, & Smith, P.A., Pensacola, and Henry W. Tipton of Lozier, Tipton, Tipton & Thames, Pensacola, for Appellants/Cross-Appellees.
W.H.F. Wiltshire of Harrell, Wiltshire, P.A., Pensacola, for Appellees/Cross-Appellants.
In this appeal, Monco Enterprises and the Blackwells, appellants, argue that the trial court erred by dismissing with prejudice four counts in their Fourth Amended Complaint. On cross-appeal appellees (Ziebart) assert that the court erred in denying a motion to dismiss the original complaint in the action below. Having considered the arguments in the briefs and heard oral argument in the cause, we reverse the dismissal of the complaint and remand for the reasons explained below. We find no merit, however, to the issue raised on cross-appeal and affirm on that issue without further discussion.
Ziebart is the franchisor of businesses that specialize in undercoating vehicles. On December 23, 1987, appellants closed on the purchase of two Ziebart franchises, which were not directly owned-and-operated by Ziebart. Subsequently, appellants filed suit against Ziebart, several of Ziebart's employees and the brokers who advised appellants on the purchase. The brokers are not parties to the instant appeal but remain parties in the case below. The Fourth Amended Complaint, which is the subject of this appeal, contains five counts, four of which allege torts against Ziebart. Based on appellants' allegations that Ziebart made misrepresentations that induced appellants to close on the purchase of the franchises, counts one through three allege fraud and misrepresentation, negligent misrepresentation, and conspiracy. Count five claims Ziebart intentionally interfered with appellants' business relationships during appellants' attempts to sell the franchises. The complaint alleges that appellants had negotiated toward a sale with a prospective purchaser for one store when Ziebart contacted this person and told him Ziebart would not approve him as a franchisee. This potential buyer subsequently bought a Ziebart-owned-and-operated franchise directly from Ziebart. The complaint further alleges that Ziebart contacted another person with whom appellants were negotiating sale of both businesses and sought to persuade this potential buyer to purchase a different Ziebart franchise instead. Upon Ziebart's motion and after hearing, the trial court dismissed with prejudice all counts as to Ziebart in the Fourth Amended Complaint.
Ziebart argues that appellants' tort claims in counts one through three of the complaint will not lie as a matter of law under Florida's economic loss rule, which is that, absent a tort independent of breach of contract, remedy for economic loss lies in contract law. See Casa Clara Condominium Assoc. v. Charley Toppino and Sons, Inc., 620 So.2d 1244, 1246 (Fla.1993); AFM Corp. v. Southern Bell Tel. & Tel. Co., 515 So.2d 180 (Fla.1987). In this instance, however, appellants have pled fraud in the inducement. This court has previously stated that actions for fraudulent inducement and breach of contract are not mutually exclusive. Sprayberry v. Sheffield Auto & Truck Service, Inc., 422 So.2d 1073, 1075 (Fla. 1st DCA 1982) (citing Ashland Oil, Inc. v. Pickard, 269 So.2d 714 (Fla. 3d DCA 1972)). In the instant case, appellants have pled the independent tort of fraud in the inducement, and the economic loss rule does not bar the action. See Johnson v....
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