What is the difference between fraud and misrepresentation?

fraud and misrepresentationWhat is the difference between fraud and misrepresentation?

Technically, there isn’t one. Fraud is a type of misrepresentation. There is, however, a distinction between fraudulent misrepresentation and negligent misrepresentation.

In order to establish a claim of fraud or fraudulent misrepresentation, also referred to as a “cause of action,” the Plaintiff must prove to the court that the following elements exist:

  1. Defendant made a false statement regarding a material fact;
  2. Defendant knew or should have known the representation was false;
  3. Defendant intended that the representation induce plaintiff to act on it; and
  4. Plaintiff suffered damages in justifiable reliance on the representation.

ALL of these elements must be met in order to prove a claim for fraud.

In order to establish a claim of misrepresentation, the Plaintiff must prove:

  1. Defendant made a false statement regarding a material fact;
  2. Defendant knew or should have known the representation was false;
  3. Defendant intended that the representation induce plaintiff to act on it; and
  4. Plaintiff suffered damages in justifiable reliance on the representation.

WAIT! THOSE ELEMENTS ARE THE SAME! Yes, that is true, but there is an understood distinction that the difference between fraudulent and negligent misrepresentation is the intent of the offender.

If the offender knew that the representation was false, especially if he had malicious intent, then the offense is most likely a fraudulent misrepresentation.

On the other hand, if the offender was unaware that the representation was false, even if he should have known it was false, then the offense is most likely negligent misrepresentation.

Misrepresentation and fraud cases can become very complicated very quickly, which is why it is important to speak with an experienced Florida litigation attorney regarding your situation as soon as possible.

There are pre-litigation steps that we at Boyer Law Firm, P.L. can take in order to mitigate some of the expenses of litigation, so contact us today if you believe you have a potential fraud and misrepresentation case.

What is a Breach of Contract in Florida?

Breach of Contract in Florida A Breach of Contract in Florida is a common claim in civil litigation. In order to prove this claim, the following elements must be met:

  1. Plaintiff and defendant entered a valid contract;
  2. Defendant committed a material breach of the contract; and
  3. Plaintiff suffered damages caused by defendant’s breach.

Therefore, in order to prove a claim of breach of contract, the Plaintiff must first ask themselves if they entered into a valid contract with the defendant. In order to determine this, it is important to understand what a valid contract is.

A valid contract contains the four elements: (1) Offer; (2) Acceptance; (3) Consideration; (4) Mutual understanding (meeting of the minds)

In general, a contract can be oral or written, but there are certain circumstances in which a contract is unenforceable unless it is in writing. This requirement is known as the “Statute of Frauds.”

Additionally, the contract cannot be for an illegal or impossible act, and contracts with minors are usually not enforceable.

There are many other conditions to a valid contract, which is why it is important to discuss your situation with an attorney who is experienced in both civil litigation and business law.

If you believe you have a breach of contract in Florida, or if you have a contract and you are not sure if it is legally enforceable, then contact Boyer Law Firm, P.L. today to see how we can assist you.

What to do if Your Company is Sued in Florida

What to do if Your Company is Sued in Florida

In Florida, if a business entity, such as a Florida LLC, Florida Corporation, or other Florida company is sued in a lawsuit, the owners, managers, or directors are required by law to hire an attorney to represent the business entity.

The reason for this is because when a person represents themselves in court, known as acting “pro se,” they are not practicing law because they are representing themselves. However, since the business is considered a separate entity from the owner(s) of the business, the owner of a company cannot represent that company because it would be considered an unlicensed practice of law, even if he is the only owner, manager, and employee in the entire company.

Companies in Florida are sued for many different reasons, both legitimate and not, but if your company is sued in Florida and you do not hire a Florida attorney to represent you, the Plaintiff in the civil action may receive a default judgment against your company for failing to respond.

A court will grant the default judgment against a business entity because if the owner of a business entity were to respond to a Complaint or Summons on behalf of the company without hiring an attorney to represent the company, they would be guilty of the unlicensed practice of law, which is a third degree felony.

This Final Default Judgment could result in several different scenarios, from a judgment lien being placed against your company, to garnishment of company assets, or even worse. In some scenarios, the Plaintiff may be able to “pierce the corporate veil” and recover your personal assets as payment for the judgment.

If your Florida LLC or Florida corporation has been sued, then you need to contact an attorney IMMEDIATELY, as failure to respond by the deadline could also result in a default judgment being granted against you and/or your company.

If your company has been involved in a business dispute that you feel may result in litigation, then it is also important to contact an attorney. An experienced litigation and business law attorney may be able to take steps, such as pre-litigation negotiations, pre-litigation review of documents, and more, that could eliminate the need for a lengthy and costly court proceeding, or at the very least, be prepared for when the action is initiated by the opposing party.

No Expectation of Privacy for Facebook Photos

Privacy for Facebook photosA picture is worth a thousand words… especially to a Jury… especially when you posted it on Facebook yourself.

A recent decision from the Florida Fourth District Court of Appeals regarding a personal injury cases states, “If a photograph is worth a thousand words, there is no better portrayal of what an individual’s life was like than those photographs the individual has chosen to share through social media before the existence of any motive to manipulate reality. The photographs sought here are thus powerfully relevant to the damage issues in the lawsuit.”

Even if you have your privacy setting set to the maximum privacy available, nothing you put on Facebook or the internet is ever 100% private.

The Court opinion in this matter said, “By creating a Facebook account, a user acknowledges personal information will be shared with others, the court said, as that is the very purpose of social networking. Facebook itself does not guarantee privacy.”

The Plaintiff in the above matter claimed that she had a reasonable expectation of privacy for Facebook photos and that they were not “discoverable” (meaning that they should be provided to Opposing Counsel during the “Discovery Process” of litigation).

The Court disagreed and allowed them into evidence.

This lesson on expectation of privacy for Facebook photos is no longer just for teenagers and children. Adults, especially professional adults, must realize that there is very little, if any, expectation of privacy on the internet.

If you do not want someone to read or see something, then do not post it.

How to Collect Money for a Foreign Judgment in Florida

Collect money for a foreign judgment in FloridaIf you have won a lawsuit and obtained a Final Judgment in another state or country against an individual who lives or owns assets in Florida or against a company that is domiciled in Florida, then you must go through the Florida domestication of foreign judgment process in order to collect the money owed to you from the foreign judgment.

The timeframe to collect money for the foreign judgment may vary, as it is a litigation process, but if the defendants to not file an objection and no unforeseen complications arise, the process will be much simpler than the original litigation process in which you obtained the Final Judgment. This is because there is usually no dispute over the facts of the case, but is simply a Court-mandated process that you must adhere to in order to collect money for a foreign judgment in Florida.

In order to collect money for a foreign judgment in Florida, the judgment must be recognized by the Florida courts. From there, Boyer Law Firm, P.L., can assist you to collect money for a foreign judgment in Florida through several methods, including the garnishment of bank accounts, garnishment of wages, liens on real or personal property, and more.