Fla. Std. Jury Instr. (Contract & Bus.) 416.28

To establish the defense of fraud, (defendant) must prove all of the following:

1. (Claimant) represented that (insert alleged fraudulent statement) and that representation was material to this contract;

2. (Claimant) knew that the representation was false when [he] [she] [it] made it or made the statement knowing [he] [she] [it] did not know whether it was true or false;

3. (Claimant) made the representation to induce (defendant) to enter into this contract; and

4. (Defendant) entered into this contract in reliance on the representation.

On this defense, (defendant) may rely on a false statement, even though its falsity could have been discovered if (defendant) had made an investigation. However, (defendant) may not rely on a false statement if [he] [she] [it] knew it was false or its falsity was obvious to [him] [her] [it]. In making this determination, you should consider the totality of the circumstances surrounding the type of information transmitted, the nature of the communication between the parties, and the relative positions of the parties.

SOURCES AND AUTHORITIES FOR 416.28

1. Fraud must be pled as an affirmative defense or it is waived. Cocoves v. Campbell, 819 So.2d 910, 912 (Fla. 4th DCA 2002); Peninsular Fla. Dist. Council of Assemblies of God v. Pan Am. Inv. & Dev. Corp., 450 So.2d 1231, 1232 (Fla. 4th DCA 1984); Ash Chem., Inc. v. Dep’t of Envtl. Regulation, 706 So.2d 362, 363 (Fla. 5th DCA 1998).

2. In order to raise an affirmative defense of fraud, the “pertinent facts and circumstances constituting fraud must be pled with specificity, and all the essential elements of fraudulent conduct must be stated.” Zikofsky v. Robby Vapor Systems, Inc., 846 So.2d 684, 684 (Fla. 4th DCA 2003) (citation omitted).

3. The party seeking to use the defense of fraud must specifically identify misrepresentations or omissions of fact. Cocoves v. Campbell, 819 So.2d 910, 912-13 (Fla. 4th DCA 2002).

4. Fraud must be pled with particularity. Cocoves v. Campbell, 819 So.2d 910, 913 (Fla. 4th DCA 2002); Thompson v. Bank of New York, 862 So.2d 768 (Fla. 4th DCA 2003).

5. Mere statements of opinion are insufficient to constitute the defense of fraud. Thompson v. Bank of New York, 862 So.2d 768, 769 (Fla. 4th DCA 2003); Carefree Vills. Inc. v. Keating Props., Inc., 489 So.2d 99, 102 (Fla. 2d DCA 1986).

6. The elements of fraudulent misrepresentation are: “(1) a false statement concerning a material fact; (2) the representor’s knowledge that the representation is false; (3) an intention that the representation induce another to act on it; and (4) consequent injury by the party acting in reliance on the representation.” Butler v. Yusem, 44 So.3d 102, 105 (Fla. 2010).

7. “Justifiable reliance is not a necessary element of fraudulent misrepresentation.” Butler v. Yusem, 44 So.3d 102, 105 (Fla. 2010).