DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

PREWITT ENTERPRISES, LLC,

Appellant,

v.

TOMMY CONSTANTINE RACING, LLC, a foreign limited liability 

company, and TOMMY CONSTANTINE, a/k/a THOMAS 

CONSTANTINE, individually,

Appellees.

No. 4D11-4208

[January 27, 2016]

Appeal and cross-appeal from the Circuit Court for the Fifteenth 

Judicial Circuit, Palm Beach County; Glenn A. Kelley, Judge; L.T. Case 

No. 502007CA003369XXXXMB.

James D. Tittle of Tittle, Kairalla & Logan, P.L., West Palm Beach, for 

appellant.

Thomas L. Hunker of The Hunker Law Group, P.A., Miami, for 

appellees.

FORST, J.

This case concerns an agreement and subsequent disagreement 

between two members of the auto-racing community. The jury rendered 

a verdict in favor of plaintiff/Appellant Prewitt Enterprises, LLC and 

awarded damages for breach of contract and fraudulent inducement.

However, the fraudulent inducement verdict was reversed by the trial 

court, in favor of defendants/Appellees Tommy Constantine Racing, LLC

and Tommy Constantine.

1 As set forth below, we reverse the trial court’s

judgment notwithstanding the verdict and remand for the trial court to 

reinstate the jury’s award of damages for fraudulent inducement in favor

of Appellant. Our decision renders Appellee’s first cross-appeal argument

1 “Appellant” will be used to represent Prewitt Enterprises, LLC and its managing 

member, Hal Prewitt. “Appellee” will be used to represent Tommy Constantine 

Racing, LLC and its president, Tommy Constantine. Both parties will be referred 

to in the singular.
2

for new trial — improper evidence — moot. We also affirm on Appellee’s 

second argument for new trial, the denial of out-of-state attorney Dennis 

Wilenchik’s motion to appear pro hac vice.

Background

Appellant desired to join a championship-level auto-racing team, but 

wanted to find a team that was already fully funded. According to the 

testimony at trial, Appellee offered Appellant the opportunity to join his 

team. He specifically told Appellant that he did not need his money in

order to run the team under the Tommy Constantine Racing name. 

Appellee indicated that he was already fully funded through sales of 

sponsorships. At one point, Appellee even suggested that he might not 

want to partner with Appellant because he did not actually need him. 

Appellant took the bait and agreed to work with Appellee.

Appellant and Appellee drafted and signed a written agreement after six 

weeks of discussions. The written agreement contained a requirement that 

Appellant pay Appellee nearly one million dollars in four installments. The 

written agreement specified that the payments “shall [be] use[d] . . . to 

provide” various racing programs and made no comment about Appellee’s

ability to pay for the program. The agreement also referenced associatelevel sponsorships that Appellant could use to generate funds. The 

agreement did not contain an integration clause, and instead included a 

provision indicating that it would only be binding “until such time that 

[the parties] may execute a formal contract (‘Definitive Agreement’).”

Before the first race, Appellee called Appellant to let him know there 

were problems with some of the vehicles and the team would not race. 

Appellant later learned that the reason for “the problems” was that 

Appellee did not have the money necessary to pay for certain components 

of the cars being built. Appellant terminated the contract when he learned 

that Appellee lacked the money to fund the team.

Appellant sued Appellee to recover his lost initial payment. Appellant

proceeded on two claims: (1) a fraudulent inducement claim based on 

Appellee’s alleged misrepresentation of his finances, and (2) a breach of 

contract claim for the failure to actually provide a team. Appellee filed 

counterclaims for breach of contract and replevin.

Before trial, the parties entered into a Joint Pretrial Stipulation. In that 

stipulation, the parties agreed that “[Appellee] did not have the ability to 

fund, independent of contribution of funds from [Appellant], a five car 

racing team . . . .”
3

About five weeks before trial, out-of-state attorney Dennis Wilenchik 

filed a pro hac vice motion to appear on behalf of Appellee. Wilenchik had 

been practicing law in Arizona for thirty-three years and held multiple 

certifications, ratings, awards, and the like. The motion revealed that 

Wilenchik had recently received a letter of admonition from the Arizona 

Bar because of an inappropriate letter sent by Wilenchik to a court. The 

motion also noted that “[a]ny other prior investigations were fully 

dismissed without any complaint.”

The trial court denied Wilenchik’s motion based in part on its 

incompleteness, but did so without prejudice so that Wilenchik could more 

fully complete the application. A week and a half before trial, Wilenchik

submitted a new application. Along with the application, Wilenchik

submitted an affidavit describing his credentials and impeaching the 

credibility of various articles that Appellant had cited in the hearing on the 

first motion. He also submitted a complete discipline record history from 

Arizona and copies of a number of the items referenced in the first hearing. 

The court again denied Wilenchik’s motion. The order stated that “[t]he 

Court [found] that this appearance is likely to adversely effect [sic] the 

administration of justice and disrupt these proceedings . . . .” This 

conclusion came after the court reviewed and described the materials 

included in Wilenchik’s affidavit.

On the morning of the first day of trial, Appellee requested that the 

court reconsider Wilenchik’s motion. The trial court refused, saying “I’m 

not going to rehear that motion. I mean, there are several reasons why I 

didn’t think it was appropriate in this case to admit anyone at the 11th

hour. That’s why I did it.” As a result of Wilenchik not being able to 

appear, Appellee was represented by a different attorney who had never 

previously sat first-chair for a jury trial and who, according to Appellee, 

“made repeated blunders which severely prejudiced” his case. 

The jury found for Appellant on both of his counts. The jury specifically 

found that Appellee made “materially false statements . . . that induced 

[Appellant]” to enter into the agreement. 

Appellee made various post-trial motions, including a motion for 

judgment notwithstanding the verdict and a motion for new trial based 

both on improper evidence being admitted and the denial of Wilenchik’s 

pro hac vice motion. The court granted Appellee’s motion for judgment 

notwithstanding the verdict but denied the other motions. Appellant 

appealed the grant of judgment notwithstanding the verdict and Appellee 
4

cross-appealed the denial of his motion for new trial and the denial of the 

pro hac vice motion.

Analysis

I. Judgment Notwithstanding the Verdict

Judgments notwithstanding the verdict are reviewed de novo. Atkinson 

v. Anderson, 77 So. 3d 768, 769 (Fla. 4th DCA 2011). “[This] [C]ourt must 

view all of the evidence in a light most favorable to the non-movant, and, 

in the face of evidence which is at odds or contradictory, all conflicts must 

be resolved in favor of the party against whom the motion has been made.” 

Collins v. Sch. Bd. of Broward Cnty., 471 So. 2d 560, 563 (Fla. 4th DCA 

1985). “Only where there is no evidence upon which a jury could properly 

rely, in finding for the plaintiff, should a directed verdict be granted.” Id.

Although the trial court relied on the economic loss rule in granting 

Appellee’s motion for judgment notwithstanding the verdict, both parties 

agree on appeal that the economic loss rule no longer applies to this case. 

See Tiara Condo. Ass’n v. Marsh & McLennan Cos., 110 So. 3d 399 (Fla. 

2013) (limiting the economic loss rule to only product liability claims). 

However, Appellee relies on Justice Pariente’s concurrence in that case, 

which made clear that a tort still must be independent from a contractual 

breach under the common law. Id. at 409; see also Dade Cnty. Sch. Bd. v. 

Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999) (allowing tipsycoachman affirmances). 

The question on appeal therefore turns on the distinction between fraud 

in the inducement (a false representation is made and relied upon in 

forming the contract) and fraud in the performance (a party to the contract 

claims to have performed but has actually just tricked the other party into 

believing that they have). For the reasons described below, we hold that 

Appellee’s fraudulent (“knowingly false”) representations in this case were 

of a present fact and therefore constituted fraud in the inducement.

Because Appellee relies most heavily on Hotels of Key Largo, Inc. v. RHI 

Hotels, Inc., 694 So. 2d 74 (Fla. 3d DCA 1997), we use that case to help 

draw the distinction between the two types of fraud at issue. In Key Largo, 

the three representations made were that the plaintiffs “would become part 

of the Radisson Hotels family”; the plaintiffs “were promised to be the sole 

beneficiaries of [a] reservation system”; and the plaintiffs were assured

that “more than 40% of [plaintiffs’] room reservations would be derived 

from the reservation system.” Id. at 76. These were all representations of 

future conduct and circumstances. The Third District therefore correctly 
5

found that the fraud claim was not independent of the contract. Id. at 78.

In the instant case, viewing the evidence in the light most favorable to 

Appellant,2 Appellee represented that he already had the funding for the 

team and did not need Appellant’s money. As such, his representations 

were about present circumstances, i.e., his present funding ability, 

verifiably true or false at the time the representation was made. The 

fraudulent misrepresentation claim therefore did not merge with the 

breach of contract claim and the independent tort rule does not support 

the trial court’s grant of Appellee’s motion for judgment notwithstanding 

the verdict. In line with the Fifth District in La Pesca Grande Charters, Inc. 

v. Moran, 704 So. 2d 710, 713 (Fla. 5th DCA 1998), and consistent with 

the Third District in Key Largo, Appellee’s knowingly false statements of 

present circumstances constitute fraud in the inducement if the other 

elements of that tort were met (which they were). 

If Appellee had represented that he would have the money come race 

time, or that he would be able to pay, he would have been making a 

representation of future ability, circumstances, or performance, which 

would merge with an underlying breach of contract claim. The difference 

is between telling someone that you have a $10 bill in your pocket right 

now to pay for lunch (present) as opposed to promising to gladly pay them 

Tuesday for a hamburger today (future). Intervening circumstances would 

be able to affect the latter, but the former is either true or false at the time 

the representation is made. 

In the instant case, Appellee stated that he had far more than $10 in 

his pocket, enough to fund a full racing team, and Appellant was induced 

to act in reliance on Appellee’s fraudulent representations about present

circumstances. Accordingly, we reverse the trial court’s grant of Appellee’s 

motion for judgment notwithstanding the verdict and remand for entry of 

judgment consistent with the jury’s verdict.

II. Motion for New Trial based on Pro Hac Vice Motion

Trial court rulings on motions to appear pro hac vice are reviewed for 

2 We note that this appears to be where the trial court erred. The court recognized 

that Appellee’s statements “could be argued to be independent of performance,” 

but interpreted it otherwise. When presented with a motion for judgment 

notwithstanding the verdict, however, a court must view all evidence in the light 

most favorable to the non-movant. Had the trial court viewed the evidence 

through the proper lens, it seems from the order that it would have reached the 

same conclusion we reach today. 
6

abuse of discretion. Huff v. State, 569 So. 2d 1247, 1249 (Fla. 1990). 

“‘Discretion . . . is abused when the judicial action is arbitrary, fanciful, or 

unreasonable, which is another way of saying that discretion is abused 

only where no reasonable man would take the view adopted by the trial 

court.’” Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980)

(quoting Delno v. Mkt. St. Ry. Co., 124 F.2d 965, 967 (9th Cir. 1942)).

A pro hac vice motion should normally be granted, but may be denied 

if there exists a legally permissible basis for doing so. THI Holdings, LLC 

v. Shattuck, 93 So. 3d 419, 423-24 (Fla. 2d DCA 2012). One proper reason 

for denying a pro hac vice motion is if granting it will “‘adversely impact[] 

the administration of justice.’” Brooks v. AMP Servs. Ltd., 979 So. 2d 435, 

438 (Fla. 4th DCA 2008) (quoting State Indus., Inc. v. Jernigan, 751 So. 2d

680, 682 (Fla. 5th DCA 2000)).

Here, the trial court specifically found that Wilenchik’s appearance 

would adversely affect the administration of justice and disrupt the 

proceedings. It based this conclusion on Wilenchik’s motion and attached 

exhibits. In particular, the court described how Wilenchik appeared to be 

boasting about having obtained a mistrial in the past and explained how 

Wilenchik’s Bar complaints from Arizona concerned the court. Although 

Wilenchik was only disciplined once by the Arizona Bar, his documents 

indicate the Arizona Bar had a “robust debate” over whether to proceed 

with investigations on other charges. The potential offenses described

include insulting a judge (calling him “a danger to public safety”) and 

attempting to improperly contact a judge presiding over a case. The trial 

court found that “it appears that if a Florida attorney had committed these 

acts which have been disclosed,” three Disciplinary Rules “would be 

violated.”

Wilenchik apparently has a long-standing disagreement with the 

website on which most of the articles used by the trial court were posted. 

These articles were submitted to the court by Wilenchik. Although he 

urged the court to give little weight to the “tabloid,” his affidavit in support 

of his motion does not deny the contents of the articles nor highlight the 

deficiencies; it simply characterized them as “biased” and “trumped up.” 

We do not necessarily agree the evidence relied upon by the trial court 

actually established that Wilenchik’s appearance would adversely impact 

the administration of justice or disrupt the proceedings. However, the 

question on appeal is not whether the evidence established problems with 

Wilenchik’s motion being granted in our minds, but whether “‘no 

reasonable [person] would take the view’” that Wilenchik’s appearance

would affect the administration of justice. Canakaris, 382 So. 2d at 1203 
7

(quoting Delno, 124 F.2d at 967). We cannot say that the trial court’s 

determination of this issue was unreasonable, even if we might have come 

to a different determination. For that reason, we hold that the trial court 

did not abuse its discretion in denying Appellee’s motion for new trial 

based on the denial of Wilenchik’s pro hac vice motion. We therefore affirm

this issue.

Conclusion

Because the statements made in this case were of a present

circumstance rather than a future one, they may properly serve as the 

basis of an independent tort based in fraud without merging into the 

breach of contract claim also asserted. Additionally, we find no abuse of 

discretion with the trial court’s denying Wilenchik’s pro hac vice motion.

We therefore reverse the trial court’s grant of Appellee’s motion for 

judgment notwithstanding the verdict and affirm the trial court’s denial of 

Appellee’s motion for new trial. Accordingly, we remand with instructions 

for the trial court to enter judgment in favor of Appellant, consistent with 

the jury’s verdict.

Reversed and remanded for proceedings consistent with this opinion.

WARNER and STEVENSON, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.