Potakar v. Hurtak
| Decision Date | 23 September 1955 |
| Citation | 82 So.2d 502 |
| Parties | Stanley POTAKAR, Appellant, v. Joe HURTAK, Appellee. |
| Court | Florida Supreme Court |
Verne L. Freeland, Miami, for appellant.
William F. Brown, Jr., Miami, for appellee.
This is an appeal from a final order of the Circuit Court for Dade County dismissing, with prejudice, a complaint filed by appellant Potakar against appellee Hurtak, seeking damages for fraudulent misrepresentation by way of an action for deceit.
The amended complaint alleged that in the course of a certain lease transaction between the parties, the appellant, plaintiff below, 'specifically asked the defendant if the previous lessees had shown a profit and the defendant did falsely state that the previous occupants and lessees of said business (a restaurant) had made a profit;' that 'in fact the defendant had a peculiar knowledge of the facts and knew that the said restaurant had lost money for several years;' that the representation was made by defendant 'as agent for and representative of the lessors of the property,' with the 'purpose and intent to defraud, deceive and influence the plaintiff to lease' the property; that plaintiff 'was not afforded an opportunity to investigate' the matter, but relied upon the statement and suffered damages by virtue of the fact that 'the said restaurant was not profitable and had never been profitable.'
The defendant below filed a motion to dismiss the amended complaint on the grounds that the bill failed to state a claim upon which relief could be granted, and that the allegations of fraud were not made with sufficient particularity. The lower court granted the motion and dismissed the complaint with prejudice.
Two questions were posed in the briefs of the parties: (1) Did the amended complaint sufficiently state a cause of action in tort for deceit? (2) Did the court err, in the absence of any request for leave to amend, in dismissing the cause with prejudice?
In the oral argument the attorney representing the plaintiff abandoned the second question, so we have before us only the first question above stated.
The amended complaint did not allege what statement was made by the defendant other than that he made a false statement as to past profits of a certain restaurant business. There were no allegations as to the past profits, no showing as to the right of the plaintiff to rely on past statement, no fact stated as to the diligence on the plaintiff's part in investigating, or failing to investigate such facts, or how he was prevented from investigating the past profits of the said business.
In the case of Fote v. Reitano, Fla., 46 So.2d 891, 893, Justice Roberts in his opinion stated that reliance upon a false representation is an essential element of a cause of action in deceit and that the party seeking to rescind a contract must prove that he was justified in relying upon such false representation.
In the above case which was a suit by the appellees for rescission and cancellation of a contract for purchase and sale of a wheel alignment service business, among other things recited as grounds for rescinding the contract were oral representations made that the net profit of the business was $660 per week, which after certain deductions would leave a net profit of $416 weekly. It was alleged that this was false and was claimed as one of the grounds of the rescission of said contract. The court stated: ...
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Food Fair, Inc. v. Anderson
...Appellants argue that the plaintiff must establish that he exercised reasonable diligence for his own protection. Potakar v. Hurtak, 82 So.2d 502 (Fla.1955); Butts v. Dragstrem, 349 So.2d 1205 (Fla. 1st DCA 1977); cert. denied, 361 So.2d 831 (Fla.1978). Food Fair argues that England's state......
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Lo Frese v. Hayes
...was prevented from making an investigation, and absent such a showing there was no right to rely upon the representations. Potakar v. Hurtak, Fla., 82 So.2d 502. Other cases stating the principle that diligence and inquiry are conditions precedent to rescission are Hirschman v. Hodges, O'Ha......
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Jaffe v. Bank of America, N.A.
...of those means and opportunities, he will not be heard to say that he was deceived by the other's misrepresentations." Potakar v. Hurtak, 82 So.2d 502, 504 (Fla.1955). To prevail on a claim of negligent misrepresentation or equitable estoppel, the plaintiff bears the burden of proving that ......
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Hester v. New Amsterdam Casualty Company
...defense to be without merit. Although Hester and Fuqua were required to use reasonable diligence for their own protection, Potakar v. Hurtak, 82 So.2d 502 (Fla.1955); Kaminsky v. Wye, 132 So.2d 44 (Fla.2d Dist.Ct.App. 1961), they discharged this obligation by their examination of pertinent ......