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Fisher v. Comer Plantation, Inc. - 772 So. 2d 455 (Ala. 2000)


To recover on a claim of fraudulent misrepresentation, a plaintiff must establish four elements: (1) a false representation (2) concerning a material existing fact (3) relied upon by the plaintiff (4) who was damaged as a proximate result. Ala. Code § 6-5-101 (1975)


Plaintiff intended to buy a plantation. One agent of the seller gave him a copy of an appraisal that an appraiser had prepared for the seller. After negotiating terms of sale, plaintiff submitted $ 50,000 earnest money with an offer. Plaintiff then became aware of a mathematical error in the appraisal, and sought to rescind the contract of purchase and get a refund of his earnest money. He filed suit, and then discovered that defendant real estate company had already paid out the earnest money from escrow without advising him, and that the real estate agent who had negotiated some terms for plaintiff was employed by one of the sellers who also owned the real estate agency. The plaintiff filed claims for fraud, fraudulent suppression, negligent misrepresentation, and breach of fiduciary duty against the prospective seller, real estate agents, escrow holder, and appraiser. The Circuit Court (Alabama) entered summary judgment for each defendant.


Was summary judgment proper?




Summary judgment was reversed as to the claims alleging suppression and breach of fiduciary duty against the real estate firm defendants and as to the claim alleging a breach of fiduciary duty by the real estate firm as an escrow agent. Summary judgment was affirmed as to the other claims agains the seller and appraiser.

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