IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                NOT FINAL UNTIL TIME EXPIRES TO
                                                FILE MOTION FOR REHEARING AND
                                                DISPOSITION THEREOF IF FILED


IAN T. BILLINGTON,

             Appellant,

 v.                                                    Case No. 5D14-2177


GINN-LA PINE ISLAND, LTD, LLLP, ET AL.,

             Appellees.

________________________________/

Opinion filed May 20, 2016

Appeal from the Circuit Court
for Lake County,
Michael G. Takac, Judge.


Philip K. Calandrino, and Thomas S. Dolney,
of Calandrino Law Firm, P.A., d/b/a Small
Business Counsel, Winter Park, for Appellant.


Darryl M. Bloodworth, of Dean, Mead,
Egerton, Bloodworth, Capouano & Bozarth,
P.A., Orlando, Lubert-Adler Partners, L.P.,
Dean Adler, and Ira Lubert, for Appellees.

Lawrence H. Kunin and Robert P. Alpert, of
Morris, Manning Martin, LLP, Atlanta, GA, for
Appellees, Ginn-La Pine Island LTD., LLLP,
Ginn-Pine Island, GP, LLC and Ginn
Development Company, LLC.
TORPY, J.

          This dispute arises from the sale and purchase of two high-end residential lots.

The lower court dismissed Appellant’s fifth amended complaint for failure to state a cause

of action. Appellees correctly advance several arguments supporting the dismissal, but

we confine our discussion to the effect of the contractual “disclaimer” clauses on the fraud

claims. Concluding that the “non-reliance” and “waiver” components of the disclaimer

clauses negate Appellant’s fraud claims, we affirm. We certify several questions of great

public importance to the Florida Supreme Court because it has not addressed the effect

of disclaimer clauses in this context in nearly 75 years, and its last pronouncement has

resulted in conflicting interpretations. See Oceanic Villas, Inc. v. Godson, 

(Fla. 1941). 1

          Appellant, Ian T. Billington, and Appellee, Ginn-LA Pine Island, Ltd., LLLP (“Pine

Island”), executed a $1.35 million contract for the sale and purchase of lot 137 in the Bella

Collina development in Lake County, Florida. The contract contained several disclaimer

clauses relevant to this appeal, including:

                   14. BROKER AGENCY DISCLOSURE; COMMISSIONS;
                   DISCLAIMER OF REPRESENTATIONS.

                          ....

                   NOTE: BEFORE BUYER SIGNS THE CONTRACT, BUYER
                   SHOULD READ IT CAREFULLY AND IS FREE TO
                   CONSULT AN ATTORNEY OF BUYER’S CHOICE.

                          ....



          1   See infra for a discussion of some of the conflicting interpretations of Oceanic
Villas.


                                                 2
              c. Buyer understands and acknowledges that the
              salespersons representing Seller in connection with this
              transaction do not have authority to make any statements,
              promises or representations in conflict with or in addition to
              the information contained in this Contract and the Community
              Documents, and Seller and Broker hereby specifically
              disclaim any responsibility for any such statements, promises
              or representations. By execution of this Contract, Buyer
              acknowledges that Buyer has not relied upon such
              statements, promises or representations, if any, and waives
              any rights or claims arising from any such statements,
              promises or representations.

                     ....

              ANY CURRENT OR PRIOR UNDERSTANDINGS,
              STATEMENTS,        REPRESENTATIONS,        AND
              AGREEMENTS, ORAL OR WRITTEN, INCLUDING, BUT
              NOT LIMITED TO, RENDERINGS OR REPRESENTATIONS
              CONTAINED IN BROCHURES, ADVERTISING OR SALES
              MATERIALS AND ORAL STATEMENTS OF SALES
              REPRESENTATIVES, IF NOT SPECIFICALLY EXPRESSED
              IN THIS CONTRACT OR IN THE COMMUNITY
              DOCUMENTS, ARE VOID AND HAVE NO EFFECT. BUYER
              ACKNOWLEDGES AND AGREES THAT BUYER HAS NOT
              RELIED ON ANY SUCH ITEMS.

(Emphasis added). Appellant and Pine Island later executed a $1.64 million contract for

the sale and purchase of lot 439 in the same development. That contract contained

clauses substantially identical to those in the lot 137 contract.

       After both transactions closed, Appellant brought suit against Pine Island and

several associated entities and individuals claiming, among other things, that he had been

induced to execute the contracts by fraudulent misrepresentations. Appellant alleged

misrepresentations concerning the ability to construct private boat docks on the lots as

well as the purchase price of other lots sold to different buyers.       After numerous

amendments, the trial court dismissed the relevant counts in the fifth amended complaint




                                              3
with prejudice. 2 Appellant initially challenges the propriety of the dismissal, arguing that

the court improperly went beyond the allegations in the complaint. Appellant correctly

argues that he alleged reliance, which is itself a sufficient allegation to survive a motion

to dismiss; however, because Appellant attached the contracts to the complaint, it was

appropriate to dismiss the complaint if the terms of the contracts contradicted the

allegation as pled. See Hillcrest Pac. Corp. v. Yamamura, 

, 1055-56 (Fla.

4th DCA 1999); Harry Pepper & Assocs., Inc. v. Lasseter, 

, 736-37 (Fla.

3d DCA 1971). Because the disclaimer clauses in the contracts here contradicted

Appellant’s assertion of actual reliance and effectively waived this claim, we conclude that

dismissal was proper.

       There appear to be three categories of disclaimer clauses identified in court

decisions and treatises. First, there are “merger” or “integration” clauses, which are

clauses that purport to make extrinsic agreements unenforceable unless they are

contained within the written contract. Mejia v. Jurich, 

, 1178 (Fla. 3d DCA

2001). These clauses might also contain statements that negate the authority of an agent

to vary the terms of the agreement. See Restatement (Second) of Contracts § 216 cmt.

e (Am. Law Inst. 1981) (observing that merger clause “may negate the apparent authority

of an agent to vary orally the written terms”). Second, there are “non-reliance,” “no-

reliance” or “anti-reliance” clauses, which state that the parties to the contract did not rely




       2Although other claims remain pending, we have jurisdiction here because several
parties were completely removed from the action upon dismissal of the pertinent claims.
We also concluded previously, by separate order in this case, that the remaining counts
are separate and distinct for purposes of appellate jurisdiction. See Fla. R. App. P.
9.110(k).



                                              4
upon statements or representations not contained within the document itself. Vigortone

AG Prods., Inc. v. PM AG Prods., Inc., 

, 644 (7th Cir. 2002). Finally, there

are clauses that purport to waive or release claims for fraud. See, e.g., Tex. Standard Oil

& Gas, L.P. v. Frankel Offshore Energy, Inc., 

, 768 (Tex. App. 2012)

(describing waiver or release as broadest form of disclaimer for fraud).             While the

contracts at issue here contain all three of these categories of disclaimers, our decision

turns on the non-reliance and waiver clauses.

       In La Pesca Grande Charters, Inc. v. Moran, 

, 714 n.1 (Fla. 5th

DCA 1998), this court addressed the subject of non-reliance clauses, stating in dictum

that a contractual agreement to “forego reliance on any prior false representation and limit

. . . reliance to the representations . . . expressly contained in the contract” has the binding

effect of negating an action based on fraud in the inducement. Although some courts

have adopted a contrary approach, 3 this appears to be the rule in the majority of

jurisdictions. See, e.g., Insitu, Inc. v. Kent, 388 F. App’x 745 (9th Cir. 2010) (applying

Washington law, “no-reliance” clause barred claims for fraud and promissory estoppel as

matter of law); Rissman v. Rissman, 

, 383-84 (7th Cir. 2000) (“non-reliance”

clause precluded claim for securities fraud); Bank of the West v. Valley Nat'l Bank of Ariz.,




       3  Some of the contrary authorities decline to enforce non-reliance clauses against
a non-sophisticated party. We cannot discern a logical basis for a distinction based on
the sophistication of the party against whom the clause is sought to be enforced, because
all parties, big and small, are bound by the terms of a contract. In any event, the size of
the transactions here clearly supports the inference that the parties were on equal footing.
Some courts also decline enforcement of clauses lacking in clarity or specificity. Here, the
disclaimers are both clear and specific. The non-reliance language in particular, without
use of legalese, clearly expresses a notion that most contracting parties should
understand. Indeed, the use of a written contract itself should give caution that material
components of the agreement must be expressed in the instrument.


                                               5


, 477-78 (9th Cir. 1994) (applying California law, “plain and strong words” of

no-reliance clause precluded fraud claim as matter of law); First Fin. Fed. Sav. & Loan

Ass’n v. E.F. Hutton Mortg. Corp., 

, 687 (8th Cir. 1987) (disclaimer of reliance

on representation negated claim for fraud); Landale Enters., Inc. v. Berry, 

,

507-08 (11th Cir. 1982) (applying Alabama law, non-reliance clause negated fraud claim);

LeTourneau Techs. Drilling Sys., Inc. v. Nomac Drilling, LLC, 

, 543

(S.D. Tex. 2009) (applying Texas law, disclaimer of reliance on prior representations

negated claim for fraud); Abry Partners V, L.P. v. F & W Acquisition, LLC, 

,

1057-58 (Del. Ch. 2006) (party could not promise not to rely on prior representations and

then “shirk its own bargain” by asserting in lawsuit that it in fact relied); Weinstock v.

Novare Grp., Inc., 

, 155-56 (Ga. Ct. App. 2011) (comprehensive merger

clause with no-reliance provisions negated fraud in inducement claim); Danann Realty

Corp. v. Harris, 

, 598-99 (N.Y. 1959) (no-reliance clause in lease

precluded claim for fraud); Blumenstock v. Gibson, 

, 1036 (Pa. Super. Ct.

2002) (party could not sign contract denying reliance on prior representations then later

claim reliance on such representations). 4



       4  Some of these decisions couch their holdings in terms of whether there was a
lack of “justifiable” or “reasonable” reliance. That potentially distinguishing feature has no
bearing on our analysis because the disclaimer clauses here establish a lack of actual
reliance. Though not essential to our conclusion, the parties here all agreed in their
briefing that “justifiable” reliance must be established by Appellant. Indeed, Appellant pled
“justifiable reliance” in several paragraphs of the fifth amended complaint. None of the
parties, however, addressed the Florida Supreme Court’s decision in Butler v. Yusem, 

(Fla. 2010), wherein the court stated that “justifiable” reliance is not an element
of a claim for fraud. 

We are mindful that our high court does not overrule itself
sub silentio. See Puryear v. State, 

, 905 (Fla. 2002). As a result, we must
view Butler’s discussion in context and against the backdrop of earlier cases from our
high court expressing contrary holdings. See, e.g., Avila S. Condo. Ass’n v. Kappa Corp.,



                                              6


, 604 (Fla. 1977) (fraud “complaint [must] alleg[e] reasonable reliance on
material misrepresentations of existing fact”) (emphasis added); Fote v. Reitano, 

891, 893 (Fla. 1950) (judgment for fraud reversed because plaintiff did not prove
“justified” reliance).
         We note that Butler does not mention M/I Schottenstein Homes v. Azam, 

91 (Fla. 2002), wherein the court framed the question in terms of whether reliance was
“justified” and acknowledged its previous adoption of Restatement (Second) of Torts §
540 (1977). Section 540 contains a corollary to section 537’s requirement of justified
reliance as an element of fraud. The two sections go hand-in-hand. If reliance need not
be “justifiable,” section 540 is unnecessary. See Restatement (Second) of Torts § 540
(1977) (“recipient of fraudulent misrepresentation is justified in relying upon truth,
although he might have ascertained the falsity . . . had he made an investigation”)
(emphasis added); 

(“justifiable” reliance must be established to prove fraud).
         We interpret Butler to hold that, consistent with the Restatement (Second) of Torts,
a lack of due diligence or investigation into the truth of a representation does not negate
the claim of justifiable reliance. That was the holding in Besett v. Basnett, 

,
998 (Fla. 1980), upon which Butler relied. The other case upon which Butler relied,
Johnson v. Davis, 

(Fla. 1985), citing Besett, concluded that “[plaintiffs’]
reliance on the truth of the [defendants’] representation was justified . . .” 

(emphasis added). See Peter A. Alces, Law of Fraudulent Transactions § 2:18 & n.57.70
and accompanying text (categorizing Butler at “far end of spectrum” regarding “justifiable”
reliance as modifier of element of fraud). Nevertheless, even if our interpretation of Butler
is incorrect, our conclusion in this case turns on a lack of actual reliance, not necessarily
on whether the reliance was justified or reasonable.
         Florida courts, like other jurisdictions, at times use the phrases “justifiable reliance”
and “reasonable reliance” interchangeably when addressing fraud claims. Nearly every
district court has used both such phrases at one time or another. It appears, however,
that the two phrases establish different standards, the latter of which is said to impose a
higher burden on the claimant. See Field v. Mans, 

, 81 (1995) (“justifiable”
reliance, rather than the heavier burden of “reasonable reliance” must be established to
prove fraud (quoting William L. Prosser, Law of Torts 718 (4th ed.1971) (footnotes
omitted))); accord W. Page Keeton, et al., Prosser and Keeton on Torts 752 (5th ed.
1984); see also In re Vann, 

, 282-85 (11th Cir. 1995) (adopting “justifiable
reliance” standard in lieu of “actual reliance” or “reasonable reliance”).
         We think the “justifiable” standard is a minimally essential filter to preclude fraud
claims where purported reliance strains logic and reason, such as when the
representation is obviously false. As one leading commentary states, the “justifiable
reliance” standard provides “some objective corroboration to plaintiff’s claim that he did
rely.” W. Page Keeton, et 

.




                                                7
       Curiously, Appellant cites La Pesca Grande Charters in support of his argument

that his fraud claim is not negated here. In doing so, he contorts a partial quote from the

case, fails to state the holding of the case and ignores the dictum that is directly contrary

to his position. 

n.1. Nevertheless, Appellant also relies upon

Oceanic Villas, Inc. v. Godson, 

(Fla. 1941), for the proposition that the

contractual disclaimer clauses in the instant case do not negate a claim for fraud. Oceanic

Villas involved a claim for misrepresentation of past earnings, which purportedly induced

execution of a long-term 

. The lease contained what Appellant

labels a “merger” clause, but which we discern is more akin to a “non-reliance” clause. 5

See 

court dismissed the complaint, apparently based upon the language of

the clause. 

Supreme Court quashed the order in part, concluding on

“policy grounds” that the clause did not bar an action for fraud. 

Although

the court concluded that the clause there did not negate the fraud claim, it recognized

that parties to a contract, “for consideration or expediency,” may include provisions that

render the contract “incontestable on account of fraud.” 

       Oceanic Villas has generated considerable confusion in the lower courts, given its

attempt to distinguish Cassara v. Bowman, 

(Fla. 1939), a case decided just

two years earlier. Cassara also involved purported fraud in the inducement of a lease

where the alleged fraud involved misrepresentations concerning the amount of profits,

prior rental receipts and other 

. The supreme court affirmed the

dismissal of a complaint based on an integration clause. 

overrule




       5The lease stated that “Lessee . . . in executing this lease . . . has not been . . .
influenced by any representations of the Lessors as to . . . earning capacity thereof . . . .”


                                              8
Cassara, in Oceanic Villas, the supreme court distinguished its earlier precedent but not

based on the language used in the disclaimer clauses. Oceanic 

.

Instead, it stated that the allegations in the complaints in the two cases were “entirely

different.” 

struggled to reconcile and apply Oceanic Villas and Cassara, yielding

conflicting results. For example, a panel of our court previously held that Cassara and

Oceanic Villas are irreconcilable, and that the latter case overruled the earlier one sub

silentio. Deluxe Motel, Inc. v. Patel, 

, 301 (Fla. 5th DCA 1999). That

decision involved a merger clause but did not concern non-reliance or waiver of

misrepresentation clauses. The Third District Court of Appeal has followed both cases

with conflicting results. Compare Cas-Kay Enters., Inc. v. Snapper Creek Trading Ctr.,

Inc., 

, 1148 (Fla. 3d DCA 1984) (citing Oceanic Villas for proposition that

“integration clause” does not negate fraud claim), with Weiss v. Cherry, 

,

13 (Fla. 3d DCA 1985) (citing Cassara for proposition that fraud claim does not “survive”

integration clause), and Wasser v. Sasoni, 

, 413 (Fla. 3d DCA 1995) (citing

Cassara and Weiss for proposition that integration clause negates fraud claim). The Cas-

Kay Enterprises court said that Cassara did not involve a fraud 

.

One year later in Weiss, involving two of the same panel members, the court relied upon

Cassara and correctly labelled it as a fraud 

; see also Beeper

Vibes, Inc. v. Simon Prop. Grp. Inc., 600 F. App’x 314, 318 (6th Cir. 2014) (applying

Florida law, attempting to reconcile Oceanic Villas and Cassara, concluding that former

does not prohibit action for fraud in face of non-reliance clause, but under Cassara, such

claim cannot be proven).




                                            9
       Mindful that the Florida Supreme Court does not overrule itself sub silentio, we are

compelled to reconcile Oceanic Villas and Cassara. See, e.g., 

(Florida Supreme Court does not intentionally overrule itself sub silentio). Because

the factual allegations of fraud in the two cases appear identical, the only distinguishing

feature is the language in the disclaimer clauses.      In Cassara, the lease contained a

classic “merger” or “integration” 

. The contract in Oceanic Villas

contained a “non-reliance” 

. Accordingly, a superficial resolution

of the apparent conflict between the cases is that a “merger” clause negates a fraud claim

but a “non-reliance” clause does not. Because the contracts at issue here contain both

such clauses, it would follow from Cassara that the “merger” language negates

Appellant’s fraud claim.

       The difficulty we have in attempting to reconcile the cases on this basis is that it

defies logic and goes against the grain of virtually all of the cases that have addressed

the distinction between the two types of clauses. These cases have concluded that non-

reliance clauses negate claims for fraud, but integration or merger clauses do not. This

distinction is explained by Judge Posner in Vigortone AG Products, Inc. v. PM AG

Products, Inc., 

, 644 (7th Cir. 2002). There, he explains that merger or

integration clauses are intended to prevent a party from introducing parol evidence to vary

the terms of a written contract. 

. Because fraud is a tort, such

a clause does not negate the tort claim. 

clause, on the other hand,

is intended to “head off the possibility of a fraud suit” by binding the parties to a promise

that they have not relied upon extrinsic representations. 

negates a claim for

fraud because it constitutes a contractual agreement on one element of a fraud claim—




                                             10
reliance. Id.; see also Restatement (Second) of Contracts § 196 (Am. Law Inst. 1981)

(noting distinction between merger clause and no-reliance clause, the latter negating a

claim for fraud). Indeed, to permit a party to contradict such a promise made in a non-

reliance clause is to sanction a breach of the very contract that is the subject of the

dispute. As New York’s highest court explained:

              Were we dealing solely with a general and vague merger
              clause, our task would be simple. A reiteration of the
              fundamental principle that a general merger clause is
              ineffective to exclude parol evidence to show fraud in inducing
              the contract would then be dispositive of the issue. . . . To put
              it another way, where the complaint states a cause of action
              for fraud, the parol evidence rule is not a bar to showing the
              fraud—either in the inducement or in the execution—despite
              an omnibus statement that the written instrument embodies
              the whole agreement, or that no representations have been
              made. . . . Here, however, plaintiff has in the plainest language
              announced and stipulated that it is not relying on any
              representations as to the very matter as to which it now claims
              it was defrauded. Such a specific disclaimer destroys the
              allegations in plaintiff's complaint that the agreement was
              executed in reliance on these contrary oral representations . .
              ..

Danann Realty 

.

       Alternatively, even if we assume that Oceanic Villas silently overruled Cassara, we

would reach the same conclusion on the facts of this case. While the Florida Supreme

Court held that the disclaimer clause in Oceanic Villas did not negate the fraud claim in

that case, it nevertheless validated some disclaimer clauses where the parties manifest

the intent to render the contract “incontestable . . . on account of fraud.” Oceanic 

. The decision draws a distinction between a contractual affirmation that

“no fraud has been committed,” which does not negate a fraud claim, and a contract that

stipulates that, even if a fraud “may have been committed,” such a claim may not be




                                             11
asserted. 

We interpret this to mean that an express waiver of the right to

maintain a fraud claim is all that is required to avoid liability for fraud. See 

If our interpretation is correct, the contracts at issue here do that and much more. Among

other components of the disclaimers is a “waive[r of] any rights or claims arising from any

such statements, promises or representations.”

       Accordingly, we hold that the “non-reliance” clauses in this case negate a claim for

fraud in the inducement because Appellant cannot recant his contractual promises that

he did not rely upon extrinsic representations. See, e.g., 

. We

also conclude, pursuant to Oceanic Villas, that an express waiver of the right to base a

claim on pre-contract representations renders the contract “incontestable . . . on account

of fraud.” Oceanic 

. We emphasize that the disclaimer clauses here

are as clear and conspicuous as they are comprehensive. If these clauses are insufficient

to render a claim for fraud “incontestable” within the contemplation of the Oceanic Villas

court, then no disclaimer can possibly accomplish that objective—an objective that is both

reasonable and essential in our complex and litigious society. Written contracts are

intended to head-off disputes. Public policy strongly favors the enforcement of contracts.

Although our decision might benefit those who would use a disclaimer clause to cleverly

avoid the consequences of a deliberate fraud, contracting parties can protect themselves

against such fraudulent practices by respecting the gravity inherent in the contracting

process and carefully reviewing a contract to ensure that material representations are

expressed in the instrument. The law necessarily presumes that parties to a contract have

read and understood its contents. Were we to reach a contrary holding, contracting

parties would have no ability to protect themselves against those who would fabricate




                                              12
claims of fraud to avoid the consequences of a contractual obligation. On balance, the

sanctity of a contract and predictability of an outcome in a dispute should take precedence

where, as here, the parties clearly manifest the intent to avoid such claims. 6

       We distinguish Lower Fees, Inc. v. Bankrate, Inc., 

(Fla. 4th DCA

2011), to the extent that the disclaimer language there did not contain a waiver. We

disagree with and express conflict with our sister court’s conclusion that a “non-reliance”

clause does not negate a claim for fraud. We note that an earlier case from the same

court relied in part on an “integration” clause to affirm the dismissal of a complaint for

fraud in the inducement. 

.

       We certify the following questions to the Florida Supreme Court as involving great

public importance:

              Did the court’s decision in Oceanic Villas, Inc. v. Godson, 

(Fla. 1941), sub silentio overrule its decision in
              Cassara v. Bowman, 

(Fla. 1939)?

              If Oceanic Villas did not overrule Cassara, does a merger
              clause such as that discussed in Cassara, negate a claim for
              fraud?

              Do clear and unambiguous disclaimer clauses, such as those
              in this case, negate or “ma[ke] incontestable” a claim for fraud
              as discussed in Oceanic Villas?




       6 Appellant argues in the alternative that the misrepresentation regarding the
private boat dock is not negated by the disclaimer because the disclaimer contains an
exception for representations that are contained in the “community documents.” He
asserts in his brief, without citation to the record, that the “community documents . . .
discuss the right of a lakefront owner to build a dock on his property . . . .” The “community
documents” are not in the record and the fifth amended complaint does not contain this
allegation. At oral argument, Appellant acknowledged that this argument is not supported
by the record. Accordingly, we disregard the argument and caution counsel that
unsupported statements of fact in briefs may result in sanctions.


                                             13
            Does a clear and unambiguous non-reliance clause negate a
            claim for fraud, where one party alleges justifiable reliance on
            an extrinsic representation?

            Did Butler v. Yusem, 

(Fla. 2010), overrule Fote
            v. Reitano, 

891 (Fla. 1950), and Avila South
            Condominium Ass’n v. Kappa Corp., 

(Fla.
            1977), and reject Restatement (Second) of Torts § 537, by
            holding that reliance need not be justified to maintain a
            fraudulent misrepresentation claim?

            If Butler did not overrule Fote or Avila, which standard applies
            in Florida, “justifiable” reliance or “reasonable” reliance?


      AFFIRMED; CONFLICT ACKNOWLEDGED; QUESTIONS CERTIFIED.

PALMER J., and HARRIS, J.M., Associate Judge, concur.




                                          14