Id. at 265 (holding the plaintiff's claim of fraudulent concealment against the defendant must fail absent a fiduciary relationship or other legal duty). Unless a fiduciary relationship exists between the parties, an affirmative act of concealment is necessary. Poe v. Summers, 11 So. 3d 129, 134 (Miss. Ct. App. 2009); (quoting Van Zandt v. Van Zandt, 227 Miss. 528, 539, 86 So. 2d 466, 470 (1956)). Absent any sort of legal duty to disclose, fiduciary relationship, or affirmative act of concealment, silence is equivalent to fraud in a business transaction if "it is accompanied by deceptive conduct or the suppression of material facts causing actual deception."
See id. The Mississippi Court of Appeals has interpreted similar language from American Jurisprudence, holding that "a party to a business transaction is under a duty to disclose facts basic to the transaction if the party knows the other is about to enter into it under a mistake as to them, and the other party could reasonably expect a disclosure of those facts." Poe v. Summers , 11 So. 3d 129, 134 (Miss. Ct. App. 2009) (citing 20 Am. Jur. 2d § 206). The court in that case also held that "silence ... is not equivalent to fraud unless it is accompanied by deceptive conduct or the suppression of material facts causing actual deception."
Under the law of fraudulent concealment there is a distinction between silence and a concealment. "Silence may constitute fraud when a duty exists to disclose the information claimed to have been suppressed." Poe v. Summers, 11 So.2d 129, 134 (Miss. App. 2009) (citing 37 Am.Jur.2d Fraud and Deceit § 204 (2001)). If, however, there is no fiduciary relationship, an overt "act of concealment is necessary to establish concealed fraud." Van Zandt v. Van Zandt, 86 So.2d 466, 538-39 (Miss.
See id . at 372-73 (first citing Waggoner v. Williamson , 8 So. 3d 147, 154 (Miss. 2009) ; and then citing Poe v. Summers , 11 So. 3d 129, 134 (Miss. Ct. App. 2009) ).See id .
As to the first requirement, when a fiduciary relationship exists, the failure to disclose can be an affirmative act. See Poe v. Summers, 11 So. 3d 129, 134 (Miss. Ct. App. 2009). However, the requirement of proof of an affirmative act refers not to proof of the act that gives rise to the claim but rather to a subsequent affirmative act of concealment.
As to the first requirement, when a fiduciary relationship exists, the failure to disclose can be an affirmative act. See Poe v. Summers, 11 So. 3d 129, 134 (Miss. Ct. App. 2009). However, the requirement of proof of an affirmative act refers not to proof of the act that gives rise to the claim but rather to a subsequent affirmative act of concealment.
When a fiduciary relationship exists, the failure to disclose can be an affirmative act. See Poe v. Summers, 11 So.3d 129, 134 (Miss.Ct.App. 2009). ¶ 26. Although Washington terminated Melvin in November 2001, by law, Melvin represented Washington and Bennett until he was properly relieved by a court of record.
This Court has held that "[s]ilence may constitute fraud when a duty exists to disclose the information claimed to have been suppressed." Poe v. Summers , 11 So. 3d 129, 134 (¶18) (Miss. Ct. App. 2009) ; see alsoMabus v. St. James Episcopal Church , 884 So. 2d 747, 762 (¶32) (Miss. 2004).
.... Mr. Saucier's claim of fraud is based on Mrs. Sekul's alleged omission of fact regarding the potential easement by SMEPA. For silence to constitute fraud, a fiduciary relationship must exist between the parties. Poe v. Summers, 11 So.3d 129, 134 (Miss.Ct.App.2009). The Mississippi Supreme Court uses a 3–prong test to determine the existence of a fiduciary relationship in a commercial transaction: “whether 1) the parties have shared goals in each other's commercial activities, 2) one of the parties places justifiable confidence or trust in the other party's fidelity, and 3) the trusted party exercises effective control over the other party.”
Mr. Saucier's claim of fraud is based on Mrs. Sekul's alleged omission of fact regarding the potential easement by SMEPA. For silence to constitute fraud, a fiduciary relationship must exist between the parties. Poe v. Summers, 11 So.3d 129, 134 (Miss.Ct.App.2009). The Mississippi Supreme Court uses a 3–prong test to determine the existence of a fiduciary relationship in a commercial transaction: “whether 1) the parties have shared goals in each other's commercial activities, 2) one of the parties places justifiable confidence or trust in the other party's fidelity, and 3) the trusted party exercises effective control over the other party.”