Pollman v. Swan
314 Ga. App. 5
| Ga. Ct. App. | 2011Background
- Georgia Supreme Court held reliance is not an element of mail fraud, reversing a portion but remanding for further proceedings.
- On remand, trial court granted summary judgment against Pollmans on their RICO claim based on mail fraud.
- Pollmans alleged misrepresentations related to the sale of a single townhome unit; no pattern of predicate acts was pled.
- Pollmans knew facts via a home inspector report and their own knowledge at closing; they did not pursue recommended inspections.
- Court analyzed proximate causation, finding injury, if any, not proximately caused by the alleged misrepresentations.
- Court also noted there was no proof of actual damages as of the time of the alleged loss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether reliance is required for mail-fraud-based RICO claims | Pollman contends reliance is not required under Bridge. | Appellees argue Markowitz requires reliance for Mississippi? (Note: use defendant's last name) It argues reliance remains an element. | Reliance not required; proximate cause remains the issue. |
| Whether there is proximate causation between alleged misrepresentations and Pollmans' injuries | Pollman asserts direct link between misrepresentation and loss exists. | Appellees contend no direct causal chain from misrepresentation to injury. | No proximate causation established; injury not proximately caused by misrepresentations. |
| Whether there was an actual loss/damages proven | Pollmans claim damages flowed from alleged misrepresentations. | Appellees argue no proof of actual loss at time of alleged loss. | No evidence of actual damages; damages not proven. |
Key Cases Cited
- Bridge v. Phoenix Bonding & Indem. Co., 553 U.S. 639 (Supreme Court (2008)) (reliance not required for mail fraud; but proximate causation remains essential)
- Markowitz v. Wieland, 243 Ga. App. 151 (Ga. App. 2000) (raises issue of reliance as element in GA context)
- Pelletier v. Zweifel, 921 F.2d 1465 (2d Cir. 1991) (summary judgment appropriate if injury not proximately caused by misrepresentations)
- Anza v. Ideal Steel Supply Corp., 547 U.S. 451 (Supreme Court (2006)) (proximate causation required; but A U.S. context for RICO harm)
- Holmes v. Securities Investor Protection Corp., 503 U.S. 258 (Supreme Court (1992)) (but-for causation cannot support a RICO claim; need proximate cause)
- Cobb v. Kennon Realty Svcs., 191 Ga. App. 740 (Ga. App. 1989) (single extended transaction not a pattern of racketeering under RICO)
- Raines v. State, 219 Ga. App. 893 (Ga. App. 1996) (single transaction cannot constitute a pattern under RICO)
- Pollman v. Swan, 305 Ga. App. 369 (Ga. App. 2010) (Division 3 holding on reliance and damages analyzed in context of mail fraud RICO)