Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-1995 _____________________________ R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. FRANCES BESSENT-DIXON, individually and as Personal Representative of the ESTATE OF TYRONE M. DIXON, deceased, et al., Appellees. _____________________________ On appeal from the Circuit Court for Alachua County. Donna M. Keim, Judge. January 15, 2021 B.L. THOMAS, J. R.J. Reynolds appeals the trial court’s final judgment awarding compensatory and punitive damages to Appellee. We reverse with directions to grant Appellant a new trial. The trial court erred when it failed to instruct the jury that to prove the intentional tort of conspiracy to fraudulently conceal information, Appellee was required to prove that the decedent relied to his detriment on a false statement by Reynolds. * See R.J. Reynolds Tobacco Co. v. Whitmire, 260 So. 3d 536 (Fla. 1st DCA 2018): Liability for fraudulent concealment cannot be shown without reliance on a false statement, absent a fiduciary relationship that would create a duty to disclose. See TransPetrol, Ltd. v. Radulovic, 764 So. 2d 878, 879 (Fla. 4th DCA 2000) (“A defendant’s knowing concealment or non-disclosure of a material fact may only support an action for fraud where there is a duty to disclose”); State v. Mark Marks, P.A., 654 So. 2d 1184, 1189 (Fla. 4th DCA 1995) (“[S]uch duty arises when one party has information that the other party has a right to know because of a fiduciary or other relation of trust or confidence between them.”). In a commercial transaction in which “the parties are dealing at arm’s length, a fiduciary relationship does not exist because there is no duty imposed on either party to protect or benefit the other.” Taylor Woodrow Homes Fla., Inc. v. 4/46-A Corp., 850 So. 2d 536, 541 (Fla. 5th DCA 2003). Thus, even with the benefit of the Engle findings, plaintiffs claiming fraudulent concealment must prove that they relied to their detriment on false statements from the tobacco companies. Hess v. Philip Morris USA, Inc., 175 So. 3d 687, 698 (Fla. 2015) (“Engle-progeny plaintiffs must certainly prove detrimental reliance in order to prevail on their fraudulent concealment claims.”) (emphasis added). Otherwise no duty to disclose information would be imposed on the companies in this transaction between a tobacco company and a consumer who purchased cigarettes. The supreme court in Philip Morris USA, Inc. v. Douglas noted that the very reason the Engle class was decertified was “ ‘because individualized issues such as legal causation, *Contrary to Appellee’s assertions, the jury instruction Appellant requested was not materially different from the one requested in R.J. Reynolds v. Prentice, 290 So. 3d 963 (Fla. 1st DCA 2019). 2 comparative fault, and damages predominate.’ ” 110 So. 3d 419, 424 (Fla. 2013) (quoting Engle, 945 So. 2d at 1268) (emphasis added). In the context of fraudulent concealment, “causation” includes individual reliance. Id., at 537–38 (citation omitted). We reiterated this rule of law in R.J. Reynolds v. Prentice, which involved the intentional tort of conspiracy to commit fraudulent concealment. 290 So. 3d 963, 965–66 (Fla. 1st DCA 2019), review dismissed, No. SC20-291, 2020 WL 1888588 (Fla. Apr. 15, 2020), review granted, No. SC20-291, 2020 WL 4590156 (Fla. Aug. 11, 2020) (holding the trial court’s refusal to instruct the jury that the plaintiff must rely to his detriment on a specific statement that concealed or omitted material information about the health risks of smoking to prove a conspiracy to commit fraudulent concealment claim was error based on this Court’s decision in Whitmire, 260 So. 3d 536). As Appellant correctly argues, this error cannot be deemed harmless: “As the beneficiary-indeed author-of the trial court’s instructional error, (Appellee) has the burden of proving there is no reasonable possibility that (the error) affected the outcome. Special v. West Boca Med. Ctr., 160 So.3d 1251, 1253 (Fla. 2014). . . . An instruction that allows a party to recover on a claim without proving all the elements cannot be harmless.” Appellant’s Initial Br. 21. We agree. The incorrect instruction allowed Appellee to argue that the jury could find Appellant liable for an intentional tort where no evidence was presented, or argument offered, that the decedent relied on false information. We reverse and remand for a new trial with a jury instruction that complies with the holdings in Whitmire and Prentice. REVERSED and REMANDED. ROWE and M.K. THOMAS, JJ., concur. 3 _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Val Leppert and William L. Durham II of King & Spalding LLP, Atlanta, GA, for Appellant. Celene H. Humphries of Brannock & Humphries, Tampa; Rod Smith and Dawn M. Vallejos-Nichols of Avera & Smith, Gainesville; Joshua A. Whitman and Eric L. Leach of Milton Leach Whitman D’Andrea & Eslinger, P.A., Jacksonville, for Appellees. 4