       Third District Court of Appeal
                               State of Florida

                          Opinion filed January 13, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                         Nos. 3D13-1904 & 3D13-175
                         Lower Tribunal No. 09-74660
                              ________________


                                Sara Moriber,
                           Appellant/Cross-Appellee,

                                        vs.

                       Michael Paul Dreiling, et al.,
                          Appellees/Cross-Appellants.


      Appeals from the Circuit Court for Miami-Dade County, Ellen Leesfield and
Lisa S. Walsh, Judges.

      Shutts & Bowen LLP, and William Jay Palmer and Stephen T. Maher, for
appellant/cross-appellee.

     Heller Waldman, P.L., and Glen H. Waldman, Eleanor T. Barnett, and
Michael A. Azre, for appellees/cross-appellants.

Before LAGOA, SALTER and SCALES, JJ.

      SCALES, J.
         Sara Moriber (“Ms. Moriber”), the plaintiff below, appeals the trial court’s

final summary judgment dismissing her fraud claims against the defendant, the

estate of her mother, Leatrice Dreiling (the defendant will be referred to as the

“Estate” and Leatrice Dreiling will be referred to as “Decedent”). Ms. Moriber’s

siblings, Michael Dreiling and Judy Dreiling Lease (“Judy Lease”), are co-personal

representatives of the Estate.

         The Estate cross-appeals the trial court’s denial of its motion for attorney’s

fees based on a proposal for settlement. The two appeals were consolidated.

         For the reasons stated below, we agree with the trial court that, as a matter of

law, Ms. Moriber could not have relied upon any representations made by the

Decedent, thereby precluding Ms. Moriber’s fraud claims. Without further

discussion, we also agree with the trial court in its denial of the Estate’s motion for

attorney’s fees. State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So. 2d 1067 (Fla.

2006).

    I.      Facts1

         A. Background Facts



1Our presentation of the facts is gleaned from Ms. Moriber’s pleadings, affidavits,
and memorandum in opposition to the Estate’s motion for summary judgment. We
consider the facts in the light most favorable to Ms. Moriber, the non-moving
party. AJH Prop. Invs. Ltd. v. SunTrust Bank, 89 So. 3d 948, 950 (Fla. 3d DCA
2012).


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      During his lifetime, Ms. Moriber’s father and Decedent’s husband, Albert

Dreiling (“Mr. Dreiling”), managed Dreiling Medical Management Corporation

(“DMM”). Mr. Dreiling created several trusts for the benefit of his wife and

children. Mr. Dreiling’s will provided that his substantial estate would pour into

the Albert Dreiling Revocable Trust, and he appointed Decedent, Ms. Moriber, and

Judy Lease as co-trustees upon his death. Mr. Dreiling died in 1993, and Decedent

was appointed personal representative of his estate.

      Ms. Moriber was a co-trustee and a beneficiary of Mr. Dreiling’s trusts.

Additionally, Ms. Moriber inherited, among other things, approximately 16.67% of

the outstanding shares of common stock in DMM.

      In 1995, Decedent created the Dreiling Family Irrevocable Trust (“Trust

#2”). Ms. Moriber, Michael Dreiling, and Judy Lease were named co-trustees of

Trust #2.

      Simultaneous with the creation of Trust #2, the co-trustees entered into a

Split-Dollar Agreement with DMM. Pursuant to the Split-Dollar Agreement,

DMM would procure and pay the premiums for three life insurance policies, each

valued at $1,500,000, insuring Decedent. The life insurance policies were owned

by Trust #2. Upon Decedent’s death, each of the co-trustees of Trust #2 would

receive equal amounts of the balance of the insurance policies’ proceeds after

DMM was reimbursed for premiums it had paid.



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        Provided no premiums for the policies were overdue, either DMM or the co-

trustees could terminate the Split Dollar Agreement by written notice to the parties.

In the event the co-trustees cancelled the policies, DMM would receive a portion

of the policies’ cash-surrender values equal to the total amount of the premiums it

paid.

        B. The Parties’ Disputes

        In 1996, disputes arose between Ms. Moriber and Decedent, and Decedent

decided to sever her business and financial relationships with Ms. Moriber.

Decedent ceased communicating with Ms. Moriber and directed Michael Dreiling

and Judy Lease to cease all communications with Ms. Moriber regarding Mr.

Dreiling’s estate, Mr. Dreiling’s trusts, DMM, and Trust #2.

        In 1997, Decedent caused DMM to stop paying premiums for the three life

insurance policies procured pursuant to the Split Dollar Agreement. Ms. Moriber

was not notified, by written notice or otherwise, that the life insurance policies

were cancelled. Ms. Moriber was also not notified that DMM had realized the cash

surrender value for the cancelled policies.

        From 1998 through 2000, Ms. Moriber, or her counsel, repeatedly demanded

accountings and information regarding Mr. Dreiling’s estate, Mr. Dreiling’s trusts,

DMM, and Trust #2.




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      Specifically regarding Trust #2, in August 1998, Ms. Moriber sent a

memorandum to her lawyer that stated, in part, “I assume that we would want to

know if the policies have been kept in force, and are still owned by the Trust [#2].

If not, I assume that you might want to consider my options.” In late-1998, Ms.

Moriber and her counsel made demands for accountings and income tax returns

regarding Trust #2.

      In 1999, Ms. Moriber instituted litigation relating to proceedings

surrounding the probate of Mr. Dreiling’s estate.2 Ms. Moriber sued Decedent and

Judy Lease in their capacities as co-trustees of Mr. Dreiling’s trusts, claiming,

among other things, that Ms. Moriber was being excluded from performing her

duties as a co-trustee and that she was not being provided information to which she

was entitled.

      C. The Settlement Agreement

      In 2000, Ms. Moriber and Decedent began to negotiate a settlement to

resolve the various disputes concerning the requested accountings, DMM, and the

2 In re Estate of Albert Dreiling, in the Seventeenth Judicial Circuit in and for
Broward County, Florida, Case No. 99-6163; Sara Moriber, as Co-Trustee of the
Albert Dreiling Marital Trust v. Leatrice Dreiling and Judy Lease as Co-Trustees
of the Albert Dreiling Marital Trust, in the Eleventh Judicial Circuit in and for
Miami-Dade County, Florida, Case No. 99-5450 and Sara Moriber, as Co-Trustee
of the Albert Dreiling Revocable Trust and the Albert Dreiling Marital Trust v.
Leatrice Dreiling and Judy Lease as Co-Trustees of the Albert Dreiling Revocable
Trust and the Albert Dreiling Marital Trust, Dan Heller, Esq. and Robert J.
Pristave, in the Eleventh Judicial Circuit in and for Miami-Dade County, Florida,
Case No. 99-2745.

                                         5
litigation. As a result of such negotiations, a Settlement Agreement was reached

whereby Ms. Moriber would settle all claims in exchange for (i) $3,550,000

million in cash; (ii) her one-third interest in the life insurance policies procured

pursuant to the Split-Dollar Agreement; and (iii) a pro rata share of DMM’s

interest in the Split-Dollar Agreement (DMM’s interest being the right to

repayment of the policies’ premiums) in exchange for Ms. Moriber’s shares in

DMM.

      The Settlement Agreement required Ms. Moriber to resign as co-trustee of

Mr. Dreiling’s trusts, and to renounce all interest in Mr. Dreiling’s marital trust,

Mr. Dreiling’s estate, and DMM. The Settlement Agreement also called for the

resignation of Ms. Moriber as trustee of Trust #2 “except . . . during the life of

[Decedent] and until the proceeds of any insurance policy on her life have been

collected and distributed . . . .” Further, the agreement required Ms. Moriber to

execute a Release in favor of Decedent and her future assigns and estate.

      D. Decedent’s Death and the Instant Lawsuit

      Upon Decedent’s death in February 2009, Ms. Moriber filed a claim against

the Estate seeking Ms. Moriber’s one-third share of the proceeds from the three life

insurance policies.

      On September 9, 2009, Ms. Moriber received a letter from Decedent’s

counsel informing Ms. Moriber that the three life insurance policies were no longer



                                         6
in existence. Ms. Moriber claims this was the first time she learned that the life

insurance policies had been cancelled by Decedent some twelve years earlier.

      In October 2009, Ms. Moriber filed the instant action against the Estate. Ms.

Moriber’s amended complaint asserts four counts: breach of the Split-Dollar

Agreement (count I); conversion (count II); fraudulent inducement to enter into the

Settlement Agreement (count III); and fraudulent misrepresentation regarding the

Settlement Agreement (count IV).

      The gravamen of the fraud counts, which are the subject of the instant

appeal, is that Ms. Moriber would never have entered into the Settlement

Agreement had she known that the insurance policies procured pursuant to the

Split-Dollar Agreement had been canceled.

      E. The Trial Court’s Summary Judgment – Order on Appeal

      On December 21, 2012, the trial court entered a final summary judgment

against Ms. Moriber on all counts. With regard to the two fraud counts, the trial

court’s summary judgment rested on four independent grounds: (i) Ms. Moriber

could not have been fraudulently induced to enter into the Settlement Agreement

because no affirmative misrepresentations were made to her regarding the status of

the life insurance policies; (ii) even if affirmative misrepresentations were made to

Ms. Moriber, her fraud claims were not actionable because she could not rely on

such representations; (iii) the Release Ms. Moriber signed in conjunction with the



                                         7
Settlement Agreement precludes her from asserting these claims; and (iv) Ms.

Moriber’s fraud claims are barred by the statute of limitations.

         Ms. Moriber appeals the trial court’s summary judgment on her fraud claims

against the Estate.

   II.      Analysis

         A. Standard of Review and Determinative Issue Analyzed

         The standard of review for an order granting summary judgment is de novo.

Fallstaff Group, Inc. v. MPA Brickell Key, LLC, 143 So. 3d 1139, 1142 (Fla. 3d

DCA 2014).

         The trial court’s summary judgment is founded upon four independent

grounds, any of which preclude Ms. Moriber’s fraud claims. We affirm based on

the trial court’s conclusion that, even if affirmative misrepresentations were made

to Ms. Moriber, Ms. Moriber could not, as a matter of law, rely upon such

misrepresentations. We, therefore, need not address the other grounds relied upon

by the trial court in entering summary judgment.

         B. Fraudulent Misrepresentation and Fraudulent Inducement – Elements

         The elements of fraudulent misrepresentation and fraudulent inducement

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



                                          8
on the representation. See Butler v. Yusem, 44 So. 3d 102, 105 (Fla. 2010);

GEICO Gen. Ins. Co. v. Hoy, 136 So. 3d 647, 651 (Fla. 2d DCA 2013).

      C. Reliance on Adversaries’ Misrepresentations – Columbus Hotel

      Beginning with Columbus Hotel Corp. v. Hotel Management Co., 116 Fla.

464 (Fla. 1934), Florida state and federal courts have expounded upon these

elements, consistently holding that, as a matter of law, a plaintiff may not rely on

statements made by litigation adversaries to establish fraud claims.3

3 See, e.g., Finn v. Prudential-Bache Sec., Inc., 821 F.2d 581, 586 (11th Cir. 1987)
(affirming summary judgment in favor of the defendant because the defendant had
no right to rely on the plaintiff’s representations because “it [was] clear that the
positions of the [parties] were antagonistic.”); Pettinelli v. Danzig, 722 F.2d 706,
710 (11th Cir. 1984) (finding the plaintiffs “failed to make a prima facie case of
fraud because they had no legal right to rely on any representations” made by
“allegedly dishonest parties”); Fuller v. Fuller, 68 So. 2d 177, 178 (Fla. 1953) (“In
the divorce proceedings the husband and wife were dealing ‘at arm’s length.’ . . . in
such a proceeding she had no right to rely upon her husband to disclose anything to
her with reference to his property or business transactions.”); Pieter Bakker Mgmt,
Inc. v. First Fed. Sav. & Loan Ass’n, 541 So. 2d 1334, 1335 (Fla. 3d DCA 1989)
(affirming partial summary judgment in favor of the defendant because “[a] party
entering into a transaction is not entitled to rely blindly on the opposing party’s
representation where, as here, the relationship between the parties has been
plagued with distrust”); see also Pepper v. First Union Nat. Bank of Fla., 605 So.
2d 1016, 1017 (Fla. 1st DCA 1992) (“Pepper is precluded, as a matter of law, from
defending against the enforcement of the release based on his claim of fraudulent
inducement, because, due to the hostile and antagonistic relationship that existed
between himself and First Union during the months prior to the execution of the
release, Pepper could not reasonably rely on any representations made by First
Union); Uvanile v. Denoff, 495 So. 2d 1177, 1180 (Fla. 4th DCA 1986)
(“Considering the history of the parties’ relationship to each other, Denoff’s
distrust of Uvanile, the negotiations that preceded the ultimate agreement, Denoff’s
complete knowledge of the corporate affairs, and the disputes the parties had over
the value of the property dictated that Denoff was not justified in relying upon the
misrepresentation.”); cf. Wilson v. Equitable Life Assur. Soc’y of U.S., 622 So. 2d

                                         9
      In Columbus Hotel, the Florida Supreme Court upheld a settlement between

a group of bondholders and a hotel entrepreneur in the face of allegations that the

entrepreneur, who was represented by counsel, had used misstatements and false

representations to induce the bondholders, who were also represented by counsel,

to execute the agreement. The Court found that the bondholders “had no right to

rely on any such representations, in view of the fact that the parties were informed

and must have understood at all times that they were in hostile relations to each

other and were dealing at arm’s length.” Id. at 487. In reaching its holding, the

Court explained, “[t]here can be no ground for complaint against representations

where the hearer lacked the right to rely thereon, because he had reason to doubt

the truth of the representation, as where . . . a [representor] . . . was obviously

hostile to the hearer and interested in misleading him.” Id. at 486.

      While, in Butler v. Yusem, 44 So. 2d at 105, the Florida Supreme Court

recently determined that “justifiable reliance” is not an essential element of fraud,

we do not read Butler as receding from the well-established and common sense

principle of law espoused in Columbus Hotel and its progeny: generally, adverse

parties negotiating a settlement agreement in an attempt to avoid litigation cannot

rely upon the representations of one another.4
25, 28 (Fla. 2d DCA 1993) (“Because the relationship between Wilson and
Equitable was relatively amicable, however, and not a relationship ‘plagued with
distrust,’ we do not have the authority to declare Mr. Wilson’s act of faith to be
unjustified reliance as a matter of law.”) (quoting Bakker, 541 So. 2d at 1335).


                                          10
      In the context of settlement agreements, one party certainly may insist upon

certain assurances from the other party. In our opinion, however, such assurances

are better enforced through contract principals (e.g., warranties, indemnitees, etc.)

rather than fraud claims.

      D. Application of Columbus Hotel

      It is without question that the parties in the instant case had a hostile and

antagonistic relationship at the time of Ms. Moriber’s alleged reliance on

Decedent’s representations.5


4As the First District articulated in Henson v. James M. Barker Co., Inc., 555 So.
2d 901, 907 (Fla. 1st DCA 1990):
      The premise underlying the rule that settlement of an existing dispute
      precludes any duty of disclosure is that the relations of the parties and
      the nature of the dispute is such that the parties generally are not
      justified in relying on representations made by their antagonists in
      arriving at a settlement and release of the disputed issues.
5 According to Ms. Moriber, the family dissension began in 1993 with the death of
Mr. Dreiling. In 1996, Decedent forced Ms. Moriber and Ms. Moriber’s husband
out of DMM. Decedent changed the locks of the DMM office and precluded Ms.
Moriber from having access to files, records, and any other information regarding
DMM. Decedent “froze [Ms. Moriber] out of all family-related information, both
business and personal . . . .” Beginning in 1997, Ms. Moriber began formally
requesting accountings and other documentation regarding Mr. Dreiling’s estate,
Mr. Dreiling’s trusts, DMM, and Trust #2. When Ms. Moriber’s repeated demands
for information went unanswered, her lawyer threatened litigation: “[t]here is no
pending action before the court, so I cannot file a motion to compel. Please advise
as to whether you intend to submit an accounting of this trust, or whether I need to
proceed judicially to compel such an accounting.” Finally, in 1999, Ms. Moriber
instituted litigation against Decedent and Judy Lease (as co-trustees of Mr.
Dreiling’s trusts) to remove Decedent and Judy Lease from control and to obtain
the requested information.

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      Ms. Moriber knew, or should have known, from her own dealings with the

Decedent that Ms. Moriber should not rely on any representations made by the

Decedent.

      Ms. Moriber does not allege that the Decedent made affirmative

misrepresentations to her. Rather, Ms. Moriber alleges that the Decedent induced

Ms. Moriber to enter into the Settlement Agreement by failing to mention that

certain insurance policies were no longer in existence. While the settlement

documents and communications alluded to the existence of the insurance policies,

neither Ms. Moriber nor her lawyer ever sought any evidence to confirm that the

policies were still in effect before entering into the Settlement Agreement.

      Yet, Ms. Moriber contemplated the possibility that the insurance policies

were no longer in existence as evidenced by a letter she sent to her lawyer in

August 1998, wherein Ms. Moriber specifically directed her lawyer to inquire

about the policies’ status:

      As respects [Decedent’s lawyer’s] letter, I noticed several omissions
      in the matters which he mentioned. I assume that those are intentional
      . . . . There was no mention of [Trust #2] which holds a group of life
      insurance policies . . . I assume that we would want to know if the
      policies have been kept in force, and are all still owned by the Trust
      [#2]. If not, I assume that you might want to consider my options.

      Additionally, as evidenced by a November 20, 1998 letter from Ms.

Moriber’s lawyer to Decedent’s lawyer, Ms. Moriber’s lawyer was aware that




                                         12
Decedent’s lawyer was being evasive with regard to Ms. Moriber’s repeated

demands for accountings and financial information:

       You had represented that accountings for the following trusts would
       be submitted. . . . Because it is now obvious that you have been
       misleading me from the beginning, demand is hereby made that all
       accountings and documentation mentioned be delivered to this office
       no later than 5:00 p.m. on December 11, 1998.

       Subsequently, Decedent’s lawyer assured Ms. Moriber’s lawyer that the

requested information would be provided as soon as possible. The information,

however, was never provided.

       Without the requested documentation in hand, Ms. Moriber decided to enter

into settlement negotiations anyway. During the negotiations, Ms. Moriber was

present and represented by counsel. The Settlement Agreement that was ultimately

signed was the twelfth iteration of the agreement.

       The Settlement Agreement required Ms. Moriber to dismiss, with prejudice,

all pending proceedings, lawsuits, objections to accountings, declaratory actions, or

other pending proceedings.

       Ms. Moriber did not demand inquiry into the relevant matters before signing

the Settlement Agreement and Release. Ms. Moriber did not insist that any terms

be inserted into the Settlement Agreement regarding the status of the life insurance

policies, the value of the Split Dollar Agreement, and/or the contents of the

pertinent trusts.



                                         13
       Ms. Moriber now claims that she was fraudulently duped into giving up her

DMM stock in exchange for DMM’s interest in the Split Dollar Agreement, which

Decedent and Decedent’s lawyer knew was valueless because the life insurance

policies had long been canceled.

       We are not unsympathetic to Ms. Moriber’s position. As with all litigants

approaching settlement, however, Ms. Moriber “had a choice . . . [she] could stand

pat and fight.”    Zelman v. Cook, 616 F. Supp. 1121, 1133 (S.D. Fla. 1985)

(quoting City of Miami v. Kory, 394 So. 2d 494, 499 (Fla. 3d DCA 1981). Ms.

Moriber, however, chose not to fight; she chose to forego insisting on the

accountings in order to settle the litigation with her mother and siblings once and

for all.

       We concur with the trial court that Columbus Hotel and its progeny control

this case. Thus, as a matter of law, Ms. Moriber’s fraud claims fail.

   III.    Conclusion

       Given the parties’ hostile relationship at the time of Ms. Moriber’s alleged

reliance on Decedent’s representations, we affirm the trial court’s entry of final

summary judgment on the fraud claims because Ms. Moriber did not, and cannot,

establish a prima facie case for fraud.

       Affirmed.




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