Lynne Noack, et al. v. Blue Cross and Blue Shield of Florida, Inc., et al.

The appellants challenge a summary final judgment entered in their civil action
on claims for fraud in the inducement, reformation of a written agreement, and antitrust
violations. Because the undisputed material facts do not negate the possibility of relief
on the theories of fraud or reformation, the summary judgment should not have been
entered as to those claims.

The appellants sought recovery upon a complaint asserting numerous claims
pertaining to their insurance business and dealings with the appellees. The trial court
initially dismissed the complaint as to all claims and the case was appealed in Noack
v. Blue Cross and Blue Shield of Florida, 742 So. 2d 433 (Fla. 1st DCA 1999), where
this court reversed the dismissal as to the claims for fraud in the inducement,
reformation, and antitrust violations. Determining that those claims were facially
sufficient, this court remanded the case for further proceedings as to those matters.
The parties thereafter made extensive filings below, including written documents,
depositions, and affidavits. The trial court then entered the summary judgment now
being appealed, finding that there was no evidence to support the remaining claims and that the undisputed facts established that there was no basis for relief.

The summary judgment order is reviewed here de novo, to ascertain whether the
record reflects any genuine issue of material fact and whether the court correctly
applied the law, after drawing every permissible inference in favor of the appellants
against whom the summary judgment was entered. E.g. Floyd v. Department of
Children and Families, 28 Fla. L. Weekly D2205 (Fla. 1st DCA September 18, 2003).
Such a judgment is appropriate only if there is not even the slightest doubt as to any
issue of material fact, as such doubt must be resolved in favor of the appellants. Id.

The record indicates that the appellants Lynn and Harry Noack (the Noacks)
worked for the appellees Mark Tubbs and Affiliated Insurance, with Tubbs being an
officer and the major stockholder of Affiliated Insurance, and the other named
appellees having associated business interests. The Noacks eventually terminated their
relationship with Tubbs and Affiliated Insurance, and started their own business as the
appellant Noack and Associates. The record further indicates that the appellee Tubbs
and certain representatives of the appellee Blue Cross made various representations,
which included statements pertaining to the manner in which the Noacks would be
compensated, and their ability to retain certain business, and when they would be
allowed to sell Blue Cross insurance, and the assistance which would be provided in
this endeavor, and when they would be approved as general agents for Blue Cross and their status in that regard, etc. The Noacks indicated that the appellees did not comply
with these promises and representations, and that the referenced statements were made
with a fraudulent intent to deceive the Noacks and induce them not to file suit against
the appellees who had breached their agreements and failed to honor other promises.
Noting that they relied on the various misrepresentations in working for and pursuing
their business relationship with several of the appellees, and that they did not file suit
and otherwise acted in accordance with the promises and statements, the Noacks
indicated that the Blue Cross representatives also informed them that pursuant to their
written agreement the Noacks could remain as general agents as long as they produced
sales and adequately performed in compliance with the agreement. Again, the Noacks
indicated that this was a false statement intended to deceive them, whereby they were led to understand that the cancellation "for any reason" clause in the written agreement
meant only that they could be terminated for cause. However, the Noacks asserted
that despite their compliance with the agreement their agency was subsequently
terminated without cause.

The evidence which the appellants submitted below creates sufficient issues of
material fact to preclude summary judgment on the claims for fraud in the inducement,
and reformation of the written agreement. In entering summary judgment as to the
fraud claim the trial court concluded that there was no evidence that Blue Cross did not intend to perform under the written agreement, or that it had any intent to deceive
the Noacks. But while our prior opinion in Noack v. Blue Cross refers to the necessity
of showing such fraudulent intent, this does not require direct and explicit testimony
to that effect as fraudulent intent may be proved circumstantially, through a series of
acts and events which, when taken together and considered in context, collectively
demonstrate the requisite intent. E.g. Department of Revenue v. Rudd, 545 So. 2d 369
(Fla. 1st DCA 1989). Indeed, cases such as Rudd emphasize that even when there is
no dispute as to the occurrence of the predicate acts, issues as to the interpretation of
the events in context will often preclude summary judgment on the question of
fraudulent intent.

As to the reformation claim, the trial court noted that the written agreement
contains a merger clause, and that there was no evidence that anyone from Blue Cross
was authorized to alter the terms of the standard agreement. However, as was
explained in this court's prior Noack opinion, the merger clause does not preclude
relief by the equitable remedy of reformation. Instead, Noack recognizes that
reformation of the written agreement may be had to give effect to the contracting
parties' true intent. And even in instances of unilateral mistake, reformation may
pertain in connection with inequitable conduct by the other contracting party. See
Smith v. Royal Automotive Group, 675 So. 2d 144 (Fla. 5th DCA 1996); Ayers v. Thompson, 536 So. 2d 1151 (Fla. 1st DCA 1988).

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