Third District Court of Appeal
State of Florida
Opinion filed January 19, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-1446
Lower Tribunal No. 19-27769
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Sobers Brooks,
Appellant,
vs.
Renita Henry, etc.,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Alan Fine,
Judge.
Sobers Brooks, in proper person.
Law Office of John E. Korf, and Thomas A. Conrad (Plantation), for
appellee.
Before LOGUE, GORDO, and LOBREE, JJ.
PER CURIAM.
Sobers Brooks, pro se, appeals the trial court’s order dismissing his
second amended complaint with prejudice. Brooks attempted to allege
“Fraud by Omission” against his former attorney. Renita Henry represented
Brooks in a family law matter when she sent an email to opposing counsel
with her proposed child support index calculation ahead of a hearing to set
temporary child support. The index did not include deductions for Brooks’
State and City taxes (Wilmington, DE) or for his Mandatory Retirement
deductions. The body of the email points out these omissions and refers to
the document as “still not completely accurate.” This email was attached to
Brooks’ fraud complaint. Shortly after the hearing, Henry withdrew from the
case before completing any updates to the index.
To prove a fraudulent misrepresentation claim, a plaintiff must show
that: “(i) the defendant made a false statement of material fact; (ii) the
defendant knew or should have known the representation was false; (iii) the
false representation was made with the intent that it would induce the plaintiff
to act; and (iv) the plaintiff suffered resulting damages in reliance upon the
representation.” Philip Morris USA Inc. v. Principe, 46 Fla. L. Weekly D2089
(Fla. 3d DCA Sept. 22, 2021).
Brooks has not and cannot state a claim for fraud based on Henry’s
email to opposing counsel. First, there is no false statement or omission.
While Henry’s email did omit certain calculations, this fact, and Henry’s
intention to later update the child support index, was explicitly stated in the
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body of the email. Also, Brooks cannot contend that Henry intended anyone
to rely on the index to act when the email including the index clearly stated
that it was “not completely accurate” and pointed out the missing information.
Finally, Brooks cannot claim to have relied on the omission because Brooks
had knowledge of the missing calculations and was otherwise informed the
index was incomplete.
Brooks also states in his table of contents and summary of the
argument that Henry’s email was a breach of section 61.30(2)(a)(d) and the
Fourteenth Amendment. Section 61.30 governs child support guidelines and
therefore has no applicability in this case alleging fraud. Further, there is
nothing in that statute that grants Brooks either a private right or a private
right of action. As to the Fourteenth Amendment, Brooks fails to state how
his constitutional rights were impacted. It is not a constitutional violation to
dismiss a complaint for failure to state a cause of action, see Bell Atl. Corp.
v. Twombly,
550 U.S. 544 (2007), and Henry is not a state actor and
therefore could not have infringed on Brooks’ due process rights.
Brooks does not specifically challenge the trial court’s entry of the order
with prejudice. Such argument would also have no merit. While the
dismissed complaint was only the second amended complaint, it is clear from
the complaint and attached documents that any attempt to amend would
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have been futile. Readon v. WPLG, LLC,
317 So. 3d 1229, 1238 (Fla. 3d
DCA 2021) (“Generally, refusal to allow amendment of a pleading constitutes
an abuse of discretion unless it clearly appears that allowing the amendment
would prejudice the opposing party; the privilege to amend has been abused;
or the amendment would be futile.”).
Affirmed.
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