Blue Supply Corp. v. Novos Electro Mechanical, Inc.
Blue Supply Corp. v. Novos Electro Mechanical, Inc.
Opinion of the Court
Blue Supply Corporation appeals from an order dismissing its claims of fraud and fraud in the inducement against defendant,
This action arises from the breach of a one-page agreement between Novos Elec-tro Mechanical, Inc. and Blue Supply for replacement of a cooling tower at a local condominium. This agreement states that Novos Electro Mechanical is an air conditioning company licensed by both the State of Florida and the City of Miami Beach and that it will obtain structural specifications and building permits necessary for, and provide the labor and materials necessary for, replacing an existing cooling tower at a Miami Beach condominium. According to Blue Supply, Novos Electro Mechanical was not properly licensed as agreed and failed to obtain the necessary permits, resulting in damages to Blue Supply when it was cited for a budding code violation and had to hire someone else to obtain the necessary permits and finish the job.
In August 2006, Blue Supply filed its first complaint in this action. That complaint raised claims against Novos Electro Mechanical for breach of contract, fraud, and fraud in the inducement. That complaint, and the two amended complaints which followed, additionally alleged claims of fraud and fraud in the inducement against Carlos Novos, President of Novos Electro Mechanical, individually, stating that Carlos Novos was a party to the Novos Electro Mechanical/Blue Supply contract. While the claims of fraud and breach of contract against Novos Electro Mechanical remain pending, the trial court dismissed the claims against Carlos Novos. At that point, Blue Supply decided to stand on its pleadings rather than to amend, and filed the instant appeal.
Our review of the instant dismissal order is de novo, and we must confine our review to the four corners of the complaint. See Morin v. Fla. Power & Light Co., 963 So.2d 258, 260 (Fla. 3d DCA 2007) (confirming that the standard of review for an order of dismissal for failure to state a cause of action is de novo (citing BellSouth Telecomms., Inc. v. Meeks, 863 So.2d 287, 289 (Fla. 2003))); Rivera v. Torfino Enters., Inc., 914 So.2d 1087, 1088 (Fla. 4th DCA 2005); Roos v. Morrison, 913 So.2d 59, 63 (Fla. 1st DCA 2005), review dismissed, 944 So.2d 341 (Fla. 2006); Biscayne Inv. Group, Ltd. v. Guar. Mgmt. Servs., Inc., 903 So.2d 251, 253 (Fla. 3d DCA 2005) (“On appeal, this court must determine de novo whether the complaint alleges sufficient ultimate facts that would entitle the plaintiff to relief.”); Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 842 So.2d 204, 206 (Fla. 3d DCA 2003); Lewis v. Barnett Bank of South Florida, N.A., 604 So.2d 937, 938 (Fla. 3d DCA 1992) (“On a motion to dismiss, the trial court is necessarily confined to the well-pled facts alleged in the four corners of the complaint.” (citing Pizzi v. Cent. Bank & Trust Co., 250 So.2d 895, 897 (Fla. 1971))); Parkway Gen. Hosp., Inc. v. Allstate Ins. Co., 393 So.2d 1171, 1172 (Fla. 3d DCA 1981); Kest v. Nathanson, 216 So.2d 233, 235 (Fla. 4th DCA 1968); Corbett v. E. Air Lines, Inc., 166 So.2d 196, 203 (Fla. 1st DCA 1964); Carter v. Nat’l Auto. Ins. Co., 134 So.2d 864, 865 (Fla. 1st DCA 1961); Stone v. Stone, 97 So.2d 352, 354 (Fla. 3d DCA 1957).
Here, both the fraud and fraud in the inducement claims against Carlos No-vos, individually, rested on the allegation that:
On or about May 16, 2006, the Defendant Carlos Novos, entered into a Contract with the Plaintiff whereby he claimed to be licensed in the State of Florida, as well as the City of Miami Beach. He also claimed to have workmen’s compensation and liability insurance.
However, the contract attached to the complaint as well as the concession of Blue Supply’s counsel at oral argument establish that Carlos Novos was not a party to the Blue Supply/Novos Electro Mechanical contract. Because of this inconsistency, any claims against Novos, individually, predicated on the existence of a contract between Carlos Novos and Blue Supply must be viewed as properly dismissed. See Harry Pepper & Assocs., Inc. v. Lasseter, 247 So.2d 736, 736 (Fla. 3d DCA 1971) (“ ‘Any exhibit attached to a pleading shall be considered a part thereof for all purposes’. Rule 1.130(b), R.C.P., 30 F.S.A. In considering the motion to dismiss the trial court was required to consider the exhibit (deposition) attached to and incorporated in the amended complaint.”); see also Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So.2d 399, 401 (Fla. 2d DCA 2000) (“Where complaint allegations are contradicted by exhibits attached to the complaint, the plain meaning of the exhibits control and may be the basis for a motion to dismiss.”); Ginsberg v. Lennar Fla. Holdings, Inc., 645 So.2d 490, 494 (Fla. 3d DCA 1994) (“When a party attaches exhibits to the complaint those exhibits become part of the pleading and the court will review those exhibits accordingly.”).
While there may have been another legal theory under which Blue Supply arguably might have proceeded had the proper allegations been made in these or other counts of the complaint, that was not done in the instant case.
The instant complaint, instead of alleging with particularity the factual basis for the claims at issue, muddied the waters with a blatantly faulty allegation.
Thus, Counts III and IV, the only counts seeking recovery against Carlos Novos, individually, alleged that Blue Supply entered into a contract with Carlos Novos, individually, in reliance on Carlos Novos’ knowingly false representations that “he” was licensed by the state and the City of Miami Beach and on unspecified “allegations ... that the company was properly licensed.” These counts were nothing more than an attempt to join Carlos Novos individually by claiming that he is a direct party to the contract rather than by claiming that he was responsible for his own tortious conduct even though acting in the scope of his employment as an officer or agent of his company.
Accordingly, the order on appeal is affirmed.
LAGOA, J., concurs.
. It appears that Carlos Novos might have been properly added, with some additional amendment, to the fraud in the inducement count against Novos Electro Mechanical.
. Because Carlos Novos is not a party to the contract at issue, we need not decide the thorny question of whether the economic loss rule would preclude recovery against him for breach of contract and for fraud and fraud in
Dissenting Opinion
dissenting.
I respectfully dissent. We should reverse the dismissal order.
Count IV of the second amended complaint is the claim for fraud in the inducement. Since the plaintiff has conceded that defendant Carlos Novos is not a party to the contract,
After disregarding that allegation, Count IV states:
38.The Plaintiff entered into the contract reasonably relying on the allegations, specifically that the company was properly licensed, made by the Defendant, Carlos Novos in his individual capacity.
39. After entering into the agreement, Plaintiff later learned that Carlos Novos’ State of Florida license and his City of Miami Beach license had been revoked.
40. Defendant, Carlos Novos, knew or should have known that his representations regarding the status of his licenses were false when made.
41. Plaintiff would not have entered into a contract with anyone not properly licensed by the State of Florida and City of Miami Beach.
The plaintiff goes on to explain that the City of Miami Beach issued a notice of violation and “the Plaintiff was forced to hire a certified contractor to obtain the necessary permits and supervise the project at an additional cost to Plaintiff.”
In ruling on a motion to dismiss, the court must construe the allegations in the light most favorable to the plaintiff as the non-moving party. See Marshall v. Amerisys, Inc., 943 So.2d 276, 278 (Fla. 3d DCA 2006).
It has been held that:
To state a cause of action for fraud in the inducement, the Plaintiff must allege (a) a misrepresentation of a material fact; (b) that the representor of the misrepresentation knew or should have known of the statement’s falsity; (c) that the representor intended that the representation would induce another to rely and act on it; and (d) that the plaintiff suffered injury in justifiable reliance on the representation
Samuels v. King Motor Co. of Ft. Lauderdale, 782 So.2d 489, 497 (Fla. 4th DCA 2001).
In this case all of the elements have been alleged except for (c), “that the rep-
Because of Florida’s longstanding policy that controversies should be decided on the merits where possible, we should reverse the dismissal of count IV and remand for further proceedings, with the proviso that the plaintiff must amend to supply the omitted allegation (c).
Both parties now agree that the contracting parties are plaintiff Blue Supply Corp., and defendant Novos Electro Mechanical, Inc.
Reference
- Full Case Name
- BLUE SUPPLY CORP. v. NOVOS ELECTRO MECHANICAL, INC., a Florida Corporation, and Carlos Novos, individually
- Cited By
- 4 cases
- Status
- Published