Legal Memorandum: Establishing a Fraud Claim in MS

Issue: In Mississippi, when can a plaintiff successfully assert a cause of action based primarily on fraud?

           To establish fraud in Mississippi the plaintiff must plead and prove: (1) a representation; (2) its falsity; (3) its materiality; (4) the speaker’s knowledge of its falsity or ignorance of its truth; (5) the speaker’s intent that it should be acted upon in the manner reasonably contemplated; (6) the hearer’s ignorance of its falsity; (7) the hearer’s reliance on its truth; (8) the hearer’s right to rely thereon; and (9) the hearer’s consequent proximate injury.  Whittington v. Whittington, 535 So. 2d 573, 585 (Miss. 1988); Martin v. Winfield, 455 So. 2d 762, 764 (Miss. 1984).

The first element, the "representation," need not always be a positive direct assertion; the omission or concealment of material facts can also constitute the requisite misrepresentation.  Davidson v. Rogers, 431 So. 2d 483, 484-85 (Miss. 1983).  Thus, where a party is entitled to inquire of another, who is required to respond, the responding party will be guilty of fraud if he knowingly makes any material misrepresentation or conceals any material fact, which misrepresentation or concealment he should reasonably anticipate will be relied upon.  Sovereign Camp, W.O.W. v. Boykin, 182 Miss. 605, 181 So. 741, 741-42 (1938); see U.S. Fidelity & Guar. Co. v. Rice, 241 Miss. 307, 130 So. 2d 924, 926 (1961).  Moreover, although it is generally stated that fraud cannot be predicated on a promise of future performance, (e.g., Southern Mortgage Co. v. O’Dom,