        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                               FOURTH DISTRICT

                      PREWITT ENTERPRISES, LLC,
                              Appellant,

                                       v.

    TOMMY CONSTANTINE RACING, LLC, a foreign limited liability
      company, and TOMMY CONSTANTINE, a/k/a THOMAS
                  CONSTANTINE, individually,
                         Appellees.

                                No. 4D11-4208

                             [January 27, 2016]

   Appeal and cross-appeal from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Glenn A. Kelley, Judge; L.T. Case
No. 502007CA003369XXXXMB.

  James D. Tittle of Tittle, Kairalla & Logan, P.L., West Palm Beach, for
appellant.

  Thomas L. Hunker of The Hunker Law Group, P.A., Miami, for
appellees.

FORST, J.

   This case concerns an agreement and subsequent disagreement
between two members of the auto-racing community. The jury rendered
a verdict in favor of plaintiff/Appellant Prewitt Enterprises, LLC and
awarded damages for breach of contract and fraudulent inducement.
However, the fraudulent inducement verdict was reversed by the trial
court, in favor of defendants/Appellees Tommy Constantine Racing, LLC
and Tommy Constantine.1 As set forth below, we reverse the trial court’s
judgment notwithstanding the verdict and remand for the trial court to
reinstate the jury’s award of damages for fraudulent inducement in favor
of Appellant. Our decision renders Appellee’s first cross-appeal argument

1 “Appellant” will be used to represent Prewitt Enterprises, LLC and its managing
member, Hal Prewitt. “Appellee” will be used to represent Tommy Constantine
Racing, LLC and its president, Tommy Constantine. Both parties will be referred
to in the singular.
for new trial — improper evidence — moot. We also affirm on Appellee’s
second argument for new trial, the denial of out-of-state attorney Dennis
Wilenchik’s motion to appear pro hac vice.

                                Background

   Appellant desired to join a championship-level auto-racing team, but
wanted to find a team that was already fully funded. According to the
testimony at trial, Appellee offered Appellant the opportunity to join his
team. He specifically told Appellant that he did not need his money in
order to run the team under the Tommy Constantine Racing name.
Appellee indicated that he was already fully funded through sales of
sponsorships. At one point, Appellee even suggested that he might not
want to partner with Appellant because he did not actually need him.
Appellant took the bait and agreed to work with Appellee.

   Appellant and Appellee drafted and signed a written agreement after six
weeks of discussions. The written agreement contained a requirement that
Appellant pay Appellee nearly one million dollars in four installments. The
written agreement specified that the payments “shall [be] use[d] . . . to
provide” various racing programs and made no comment about Appellee’s
ability to pay for the program. The agreement also referenced associate-
level sponsorships that Appellant could use to generate funds. The
agreement did not contain an integration clause, and instead included a
provision indicating that it would only be binding “until such time that
[the parties] may execute a formal contract (‘Definitive Agreement’).”

    Before the first race, Appellee called Appellant to let him know there
were problems with some of the vehicles and the team would not race.
Appellant later learned that the reason for “the problems” was that
Appellee did not have the money necessary to pay for certain components
of the cars being built. Appellant terminated the contract when he learned
that Appellee lacked the money to fund the team.

   Appellant sued Appellee to recover his lost initial payment. Appellant
proceeded on two claims: (1) a fraudulent inducement claim based on
Appellee’s alleged misrepresentation of his finances, and (2) a breach of
contract claim for the failure to actually provide a team. Appellee filed
counterclaims for breach of contract and replevin.

   Before trial, the parties entered into a Joint Pretrial Stipulation. In that
stipulation, the parties agreed that “[Appellee] did not have the ability to
fund, independent of contribution of funds from [Appellant], a five car
racing team . . . .”

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    About five weeks before trial, out-of-state attorney Dennis Wilenchik
filed a pro hac vice motion to appear on behalf of Appellee. Wilenchik had
been practicing law in Arizona for thirty-three years and held multiple
certifications, ratings, awards, and the like. The motion revealed that
Wilenchik had recently received a letter of admonition from the Arizona
Bar because of an inappropriate letter sent by Wilenchik to a court. The
motion also noted that “[a]ny other prior investigations were fully
dismissed without any complaint.”

    The trial court denied Wilenchik’s motion based in part on its
incompleteness, but did so without prejudice so that Wilenchik could more
fully complete the application. A week and a half before trial, Wilenchik
submitted a new application. Along with the application, Wilenchik
submitted an affidavit describing his credentials and impeaching the
credibility of various articles that Appellant had cited in the hearing on the
first motion. He also submitted a complete discipline record history from
Arizona and copies of a number of the items referenced in the first hearing.

   The court again denied Wilenchik’s motion. The order stated that “[t]he
Court [found] that this appearance is likely to adversely effect [sic] the
administration of justice and disrupt these proceedings . . . .” This
conclusion came after the court reviewed and described the materials
included in Wilenchik’s affidavit.

   On the morning of the first day of trial, Appellee requested that the
court reconsider Wilenchik’s motion. The trial court refused, saying “I’m
not going to rehear that motion. I mean, there are several reasons why I
didn’t think it was appropriate in this case to admit anyone at the 11th
hour. That’s why I did it.” As a result of Wilenchik not being able to
appear, Appellee was represented by a different attorney who had never
previously sat first-chair for a jury trial and who, according to Appellee,
“made repeated blunders which severely prejudiced” his case.

   The jury found for Appellant on both of his counts. The jury specifically
found that Appellee made “materially false statements . . . that induced
[Appellant]” to enter into the agreement.

   Appellee made various post-trial motions, including a motion for
judgment notwithstanding the verdict and a motion for new trial based
both on improper evidence being admitted and the denial of Wilenchik’s
pro hac vice motion. The court granted Appellee’s motion for judgment
notwithstanding the verdict but denied the other motions. Appellant
appealed the grant of judgment notwithstanding the verdict and Appellee

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cross-appealed the denial of his motion for new trial and the denial of the
pro hac vice motion.

                                  Analysis

I. Judgment Notwithstanding the Verdict

    Judgments notwithstanding the verdict are reviewed de novo. Atkinson
v. Anderson, 77 So. 3d 768, 769 (Fla. 4th DCA 2011). “[This] [C]ourt must
view all of the evidence in a light most favorable to the non-movant, and,
in the face of evidence which is at odds or contradictory, all conflicts must
be resolved in favor of the party against whom the motion has been made.”
Collins v. Sch. Bd. of Broward Cnty., 471 So. 2d 560, 563 (Fla. 4th DCA
1985). “Only where there is no evidence upon which a jury could properly
rely, in finding for the plaintiff, should a directed verdict be granted.” Id.

   Although the trial court relied on the economic loss rule in granting
Appellee’s motion for judgment notwithstanding the verdict, both parties
agree on appeal that the economic loss rule no longer applies to this case.
See Tiara Condo. Ass’n v. Marsh & McLennan Cos., 110 So. 3d 399 (Fla.
2013) (limiting the economic loss rule to only product liability claims).
However, Appellee relies on Justice Pariente’s concurrence in that case,
which made clear that a tort still must be independent from a contractual
breach under the common law. Id. at 409; see also Dade Cnty. Sch. Bd. v.
Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999) (allowing tipsy-
coachman affirmances).

    The question on appeal therefore turns on the distinction between fraud
in the inducement (a false representation is made and relied upon in
forming the contract) and fraud in the performance (a party to the contract
claims to have performed but has actually just tricked the other party into
believing that they have). For the reasons described below, we hold that
Appellee’s fraudulent (“knowingly false”) representations in this case were
of a present fact and therefore constituted fraud in the inducement.

    Because Appellee relies most heavily on Hotels of Key Largo, Inc. v. RHI
Hotels, Inc., 694 So. 2d 74 (Fla. 3d DCA 1997), we use that case to help
draw the distinction between the two types of fraud at issue. In Key Largo,
the three representations made were that the plaintiffs “would become part
of the Radisson Hotels family”; the plaintiffs “were promised to be the sole
beneficiaries of [a] reservation system”; and the plaintiffs were assured
that “more than 40% of [plaintiffs’] room reservations would be derived
from the reservation system.” Id. at 76. These were all representations of
future conduct and circumstances. The Third District therefore correctly

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found that the fraud claim was not independent of the contract. Id. at 78.

   In the instant case, viewing the evidence in the light most favorable to
Appellant,2 Appellee represented that he already had the funding for the
team and did not need Appellant’s money. As such, his representations
were about present circumstances, i.e., his present funding ability,
verifiably true or false at the time the representation was made. The
fraudulent misrepresentation claim therefore did not merge with the
breach of contract claim and the independent tort rule does not support
the trial court’s grant of Appellee’s motion for judgment notwithstanding
the verdict. In line with the Fifth District in La Pesca Grande Charters, Inc.
v. Moran, 704 So. 2d 710, 713 (Fla. 5th DCA 1998), and consistent with
the Third District in Key Largo, Appellee’s knowingly false statements of
present circumstances constitute fraud in the inducement if the other
elements of that tort were met (which they were).

   If Appellee had represented that he would have the money come race
time, or that he would be able to pay, he would have been making a
representation of future ability, circumstances, or performance, which
would merge with an underlying breach of contract claim. The difference
is between telling someone that you have a $10 bill in your pocket right
now to pay for lunch (present) as opposed to promising to gladly pay them
Tuesday for a hamburger today (future). Intervening circumstances would
be able to affect the latter, but the former is either true or false at the time
the representation is made.

   In the instant case, Appellee stated that he had far more than $10 in
his pocket, enough to fund a full racing team, and Appellant was induced
to act in reliance on Appellee’s fraudulent representations about present
circumstances. Accordingly, we reverse the trial court’s grant of Appellee’s
motion for judgment notwithstanding the verdict and remand for entry of
judgment consistent with the jury’s verdict.

II. Motion for New Trial based on Pro Hac Vice Motion

    Trial court rulings on motions to appear pro hac vice are reviewed for

2We note that this appears to be where the trial court erred. The court recognized
that Appellee’s statements “could be argued to be independent of performance,”
but interpreted it otherwise. When presented with a motion for judgment
notwithstanding the verdict, however, a court must view all evidence in the light
most favorable to the non-movant. Had the trial court viewed the evidence
through the proper lens, it seems from the order that it would have reached the
same conclusion we reach today.

                                        5
abuse of discretion. Huff v. State, 569 So. 2d 1247, 1249 (Fla. 1990).
“‘Discretion . . . is abused when the judicial action is arbitrary, fanciful, or
unreasonable, which is another way of saying that discretion is abused
only where no reasonable man would take the view adopted by the trial
court.’” Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980)
(quoting Delno v. Mkt. St. Ry. Co., 124 F.2d 965, 967 (9th Cir. 1942)).

    A pro hac vice motion should normally be granted, but may be denied
if there exists a legally permissible basis for doing so. THI Holdings, LLC
v. Shattuck, 93 So. 3d 419, 423-24 (Fla. 2d DCA 2012). One proper reason
for denying a pro hac vice motion is if granting it will “‘adversely impact[]
the administration of justice.’” Brooks v. AMP Servs. Ltd., 979 So. 2d 435,
438 (Fla. 4th DCA 2008) (quoting State Indus., Inc. v. Jernigan, 751 So. 2d
680, 682 (Fla. 5th DCA 2000)).

   Here, the trial court specifically found that Wilenchik’s appearance
would adversely affect the administration of justice and disrupt the
proceedings. It based this conclusion on Wilenchik’s motion and attached
exhibits. In particular, the court described how Wilenchik appeared to be
boasting about having obtained a mistrial in the past and explained how
Wilenchik’s Bar complaints from Arizona concerned the court. Although
Wilenchik was only disciplined once by the Arizona Bar, his documents
indicate the Arizona Bar had a “robust debate” over whether to proceed
with investigations on other charges. The potential offenses described
include insulting a judge (calling him “a danger to public safety”) and
attempting to improperly contact a judge presiding over a case. The trial
court found that “it appears that if a Florida attorney had committed these
acts which have been disclosed,” three Disciplinary Rules “would be
violated.”

   Wilenchik apparently has a long-standing disagreement with the
website on which most of the articles used by the trial court were posted.
These articles were submitted to the court by Wilenchik. Although he
urged the court to give little weight to the “tabloid,” his affidavit in support
of his motion does not deny the contents of the articles nor highlight the
deficiencies; it simply characterized them as “biased” and “trumped up.”

   We do not necessarily agree the evidence relied upon by the trial court
actually established that Wilenchik’s appearance would adversely impact
the administration of justice or disrupt the proceedings. However, the
question on appeal is not whether the evidence established problems with
Wilenchik’s motion being granted in our minds, but whether “‘no
reasonable [person] would take the view’” that Wilenchik’s appearance
would affect the administration of justice. Canakaris, 382 So. 2d at 1203

                                       6
(quoting Delno, 124 F.2d at 967). We cannot say that the trial court’s
determination of this issue was unreasonable, even if we might have come
to a different determination. For that reason, we hold that the trial court
did not abuse its discretion in denying Appellee’s motion for new trial
based on the denial of Wilenchik’s pro hac vice motion. We therefore affirm
this issue.

                               Conclusion

   Because the statements made in this case were of a present
circumstance rather than a future one, they may properly serve as the
basis of an independent tort based in fraud without merging into the
breach of contract claim also asserted. Additionally, we find no abuse of
discretion with the trial court’s denying Wilenchik’s pro hac vice motion.

    We therefore reverse the trial court’s grant of Appellee’s motion for
judgment notwithstanding the verdict and affirm the trial court’s denial of
Appellee’s motion for new trial. Accordingly, we remand with instructions
for the trial court to enter judgment in favor of Appellant, consistent with
the jury’s verdict.

   Reversed and remanded for proceedings consistent with this opinion.

WARNER and STEVENSON, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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