FRAUD

1. A false representation, actual or implied, or the concealment of a matter of fact

material to the transaction, made falsely;

2. Knowledge of the falsity – or statements made with such disregard and

recklessness that knowledge is inferred;

3. Intent to mislead another into relying on the misrepresentation;

4. Reliance – with a right to rely;

5. Injury as a consequence of that reliance Manning v. Len Immke Buick, Inc. (1971), 28 Ohio App.2d 203, 205; 57 Ohio Op.2d 308, 309. See also, Cohen v. Lamko, Inc. (1984), 10 Ohio St. 3d 167, 169, 462 N.E.2d 407, 409, quoting Friedland v. Lipman (1980), 68 Ohio App. 2d 255, 429 N.E.2d 456; see, also, Russ v. TRW, Inc. (1991), 59 Ohio St. 3d 42, 570 N.E.2d 1076. Fraud is defined as "(a) a representation or, where there is a duty to disclose, concealment of a fact, (b) which is material to the transaction at hand, (c) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred, (d) with the intent of misleading another into relying upon it, (e) justifiable reliance upon the representation or concealment, and (f) a resulting injury proximately caused by the reliance."

Silence or nondisclosure of a material fact, when used as an inducement to another, can be an act of fraud. Miller v. Higgins (1970), 452 W.W.2d 131; Klott v. Associates R.E. (1974), 42 Ohio App.2d 118, 70 Ohio Op.2d 322. A claim of fraud, "is maintainable not only as a result of affirmative misrepresentations, but also for negative ones, such as the failure of a party * * * to fully disclose facts of a material nature where there exists a duty to speak." Textron Financial Corp., 115 Ohio App. 3d at 153 (citation omitted) (emphasis added).

A representation in a transaction which the maker knows to be capable of two interpretations, one false and the other true, if made with the intention that it be understood in the sense in which it is false, is a fraudulent misrepresentation. Com. By Packel v. Tolleson (Pa. Cmwlth 1974), 321 A.2d 664.

Aggravated or egregious fraud, which is grounds for punitive damages, requires evidence of maliciousness, deliberateness, grossness, or wantonness. Romp v. Haig (1995), 110 Ohio App. 3d 643, 645, 675 N.E.2d 10, 11, citing Logsdon v. Graham Ford Co. (1978), 54 Ohio St. 2d 336, 376 N.E.2d 1333. Punitive damages may be proper in cases involving fraud. Davis, 109 Ohio App. 3d at 58 (citing Byrley v. Nationwide Life Ins. Co. (1994), 94 Ohio App. 3d 1, 20, 640 N.E.2d 187). Where punitive damages are warranted in a case involving fraud, attorney fees may also be awarded. Farmers State Bank & Trust Co. v. Mikesell (1988), 51 Ohio App. 3d 69, 86, 554 N.E.2d 900; Roberts v. Mason (1859), 10 Ohio St. 277, 281.