Consequently, she could not argue that it was error not to grant a JNOV on the issue of causation. In contrast, the parties in this case effectively merged the claims of breach of fiduciary duty and fraud during the course of litigation. The concepts of fraud and breach of fiduciary duty are closely related. The fiduciary has a duty to fully disclose information which might affect the other person's rights and influence his action. The existence of a fiduciary duty allows a finding of fraud even where the fraud is committed by silence or non-disclosure, while the absence of a fiduciary duty precludes a finding of fraud unless the offender makes remarks which are either half true or which omit material information.
Fraud can thus be a type of breach of fiduciary duty.
The parties and court treated the fraud and breach of fiduciary duty claims as a single claim. The only portion of the special verdict form which could have presented the fraud question to the jury is the section which addressed the issue of breach of fiduciary duty. Railwater did not object to the jury instructions or special verdict form, and even made affirmative statements indicating it believed that withholding information regarding expenses was fraudulent. In sum, it appears that all parties believed that the special verdict form addressed the claims of fraud and breach of fiduciary duty together, and that the claim of breach of fiduciary duty was factually based on Lomond's allegedly fraudulent conduct. Although the two claims were pled separately, they were effectively merged through the trial.