. 11, 28-29, 3 A.2d 768, 776-777 (1939) (holding that buyer had right to rely without investigating); Board of Public Instruction v. Everett W. Martin Son, Inc., 97 So.2d 21, 26-27 (Fla. 1957) (holding that purchaser had no duty to investigate where seller made clear factual representation); City Dodge, Inc. v. Gardner, 232 Ga. 766, 770, 208 S.E.2d 794, 797 (1974) (requiring justifiable reliance); Sorenson v. Adams, 98 Idaho 708, 715, 571 P.2d 769, 776 (1977) (stating that neither purchasers' lack of caution in believing a factual misrepresentation nor their failure to make an independent investigation is a defense to their fraud action); Roda v. Berko, 401 Ill. 335, 342, 81 N.E.2d 912, 916 (1948) ("[I]f it appears that one party Page 74 has been guilty of an intentional and deliberate fraud, the doctrine is well settled that he cannot defend against such fraud by saying that the same might have been discovered had the party whom he deceived exercised reasonable diligence and care"); Gonderman v. State Exchange Bank, 166 Ind. App. 181, 190, 334 N.E.2d 724, 729 (1975) (stating that level of required prudence depends on whether the recipient of a representation is unwary); Sutton v. Greiner, 177 Iowa 532, 540-541, 159 N.W. 268, 271-272 (1916) (same as Illinois); Prather v. Colorado Oil Gas Corp., 218 Kan. 111, 119, 542 P.2d 297, 304 (1975) (finding no duty to investigate); Sanford Construction Co. v. S. H. Contractors, Inc., 443 S.W.2d 227, 233-234 (Ky.App. 1969) (indicating that level of reliance depends on sophistication of parties); Horner v. Flynn, 334 A.2d 194, 205 (Me. 1975) (stating that a person who commits intentional misrepresentation cannot excuse himself based on the foolishness of the hearer in believing the representation); Yorke v. Taylor, 332 Mass. 368, 372-374, 124 N.E.2d 912, 915-916 (1955) (relying on Restatement (First)); Boss v. Tomaras, 241 Mich. 540, 542, 217 N.W. 783 (1928) (finding right to rely without investigation); Murphy v. Country House, Inc., 307 Minn. 344, 351, 240 N.W.2d 507, 512 (1976) (rejecting reasonable perso
The trial court, however, is silent on the remaining question, that of deception or reasonable reliance by Booher on the representations in the various transactions. Gonderman v. State Exchange Bank, Roann, 166 Ind. App. 181, 189-90, 334 N.E.2d 724 (1975). This issue is virtually identical to the basis of the bargain question remanded under the express warranty theory.
d that the test for determining whether a party to a transaction has a right to rely on representations of the other is not whether a reasonably prudent person would be justified in relying on such representations but rather, whether the complaining party, in view of his own information and intelligence, had a right to rely on the representations. This subjective standard depends not on what an ordinarily prudent person reasonably would do to protect his or her interests, but upon what the complaining party reasonably could be expected to do. Decisions from other jurisdictions in accord with this view include Winn v. McCulloch Corp., 60 Cal.App.3d 663, 671, 131 Cal.Rptr. 597, 601 (1976) ("Negligence in reliance upon a misrepresentation is not a defense where the representation was intentionally made to induce reliance upon it."); Blynn v. Ralbag, 201 So.2d 611, 613 (Fla.App. 1967); Bergman Lefkow Insurance Agency v. Flash Cab Co., 110 Ill. App.2d 415, 429, 249 N.E.2d 729, 736 (1969); Gonderman v. State Exchange Bank, Roann, 166 Ind. App. 181, 190, 334 N.E.2d 724, 729 (1975) ("[T]he requirement of reasonable prudence in business transactions is not extended so as to permit an intentional fraud perpetrated upon the unwary."); Wolf v. Brungardt, 215 Kan. 272, 283, 524 P.2d 726, 735 (1974); Public Finance Corp. v. Scribner, 159 Me. 150, 152-53, 189 A.2d 368, 369 (1963); Judson v. Peoples Bank Trust Co. 25 N.J. 17, 27, 134 A.2d 761, 766 (1957); Crofford v. Bowden, 311 S.W.2d 954, 956 (Tex.Civ.App. 1958).
Issue Two: Evidence of Injury for Claims of Fraud and Constructive Fraud We next address Richard and Randall's allegations that TCO and Julie committed fraud and constructive fraud based on the Trust reformation. For each of those causes of action, Richard and Randall must demonstrate injury. See, e.g., Baxter v. I.S.T.A. Ins. Trust, 749 N.E.2d 47, 50 (Ind.Ct.App.2001) (noting that fraud without injury does not give rise to a cause of action) (citing Gonderman v. State Exch. Bank, Roann, 166 Ind.App. 181, 191, 334 N.E.2d 724, 730 (1975)); Stoll v. Grimm, 681 N.E.2d 749, 758 (Ind.Ct.App.1997) (“In an action for fraud, the injured party is entitled to compensation for damage suffered as a result of the fraudulent representation.”); see also Strong v. Jackson, 777 N.E.2d 1141, 1147 (Ind.Ct.App.2002) (holding that there can be no claim for constructive fraud if there is “no injury to the complaining party as a proximate result” of the allegedly fraudulent conduct), reaff'd on reh'g, 781 N.E.2d 770 (Ind.Ct.App.2003), trans. denied.
Fraternal asserts that the trial court erred by denying its motion for summary judgment regarding ISTA's claimed contractual right of subrogation. We address this issue first because if ISTA had no right to subrogation it would have no claim for fraud or breach of duty against Fraternal or GAB since it would have suffered no injury. See Gonderman v. State Exchange Bank, Roann, 166 Ind. App. 181, 191, 334 N.E.2d 724, 730 (1975) (noting that fraud without injury does not give rise to cause of action); Fast Eddie's v. Hall, 688 N.E.2d 1270, 1272 (Ind.Ct.App. 1997) ("absent a duty, there can be no negligence"), trans. denied.
The evidence most favorable to Payne as the non-movant raises a genuine issue of material fact with respect to his defense of fraud in the inducement. See Gonderman v. State Exchange Bank (1975), 166 Ind. App. 181, 334 N.E.2d 724. Therefore, Mundaca was not entitled to judgment as a matter of law.
Id. (It is also the law that a claim for fraud may be established by circumstantial evidence. E.g., Gonderman v. State Exchange Bank, Roann (1975), 166 Ind. App. 181, 334 N.E.2d 724.) Therefore, we reach our conclusion, that the court erred here, by relying heavily on both the direct and the circumstantial evidence and the reasonable inferences therefrom in order to determine if Thompson constructed a prima facie case of fraud against the Bests.
"Notwithstanding the lack of an exact legal definition, the elements of a cause of action in fraud are well established: To sustain an action for fraud it must be proven by a preponderance of the evidence that a material representation of a past or existing fact was made which was untrue and known to be untrue by the party making it, or else recklessly made, and that another party did in fact rely on the representation and was induced thereby to act to his detriment. Fleetwood Corporation v. Mirich (1980), Ind. App., 404 N.E.2d 38; Gonderman v. State Exchange Bank, Roann (1975), 166 Ind. App. 181, 334 N.E.2d 724; Plumley v. Stanelle (1974), 160 Ind. App. 271, 311 N.E.2d 626; Soft Water Utilities, Inc. v. LeFevre (1974), 159 Ind. App. 529, 308 N.E.2d 395; Grissom v. Moran (1972), 154 Ind. App. 419, 290 N.E.2d 119; Middelkamp v. Hanewich (1970), 147 Ind. App. 561, 263 N.E.2d 189."
The elements of fraud, which must be proved by a preponderance of the evidence, are 1) A material misrepresentation of past or existing fact made with knowledge that the representation was untrue or recklessly made; 2) reliance on the representation by another party; 3) resulting in that party's acting to his detriment. Fleetwood v. Mirich, (1980) Ind. App., 404 N.E.2d 38; Gonderman v. State Exchange Bank, Loan, (1975) 166 Ind. App. 181, 334 N.E.2d 724. There is, however, a corollary rule of law pertaining to reliance on representations which is applicable to the case at bar.
Grissom v. Moran, (1972) 154 Ind. App. 419, 290 N.E.2d 119. Direct and positive proof is not essential to establish fraud; circumstantial evidence will suffice if there are grounds from which fraud can be reasonably inferred. Tompkins v. Smith, (1952) 122 Ind. App. 502, 106 N.E.2d 487; Gonderman v. State Exchange Bank, Roann, (1975) 166 Ind. App. 181, 334 N.E.2d 724. An unqualified statement that a fact does or does not exist when communicated for the purpose of inducing another person to act, implies that that person making such representation is acquainted with the facts; and if action is induced by the false statement a fraudulent purpose will be implied. Gonderman, supra.