Pollman v. Swan

The common-law requirement of justifiable reliance in fraud is not a requirement of the federal mail fraud statute, and the Georgia RICO Act defines racketeering activity by referring to the federal statute.

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In Pollman v. Swan , 289 Ga. 767 716 SE2d 191 2011, the Supreme Court of Georgia affirmed Division 1 and reversed a portion of Division 3 of this court’s opinion in Pollman v. Swan , 305 Ga. App. 369 699 SE2d 582 2010. The Supreme Court held that reliance is not an element of mail fraud, reversed the judgment of this court with respect to that holding, and remanded the case to this court for further proceedings not inconsistent with its opinion. On remand, we affirm the trial court’s grant of summary judgment on that claim. We do so because the trial court correctly held in the alternative that the Pollmans failed to show other elements of a RICO claim based upon mail fraud. In Division 3 of our prior opinion, we held in part that ” ‘pretermitting whether the action meets the definition of mail fraud, the contract language precludes a showing of reliance; thus, no mail fraud can be shown,’ ” quoting Markowitz v. Wieland , 243 Ga. App. 151, 155 2 b 532 SE2d 705 2000. The Supreme Court of Georgia granted certiorari on two issues: 1 whether Markowitz ‘s requirement of reliance was in conflict with Bridge v. Phoenix Bonding & Indem. Co. , 553 U. S. 639 128 SC 2131, 170 LE2d 1012 2008; and 2 whether summary judgment was correctly granted against the Pollmans on the issue of proof of damages.1

With respect to the first issue, our Supreme Court noted the holding in Bridge that “the common-law requirement of justifiable reliance in fraud is not a requirement of the mail fraud statute.” 289 Ga. at 768 1. Without expressly overruling Markowitz , the court “reversed that portion of the judgment of the Court of Appeals affirming the grant of summary judgment to appellees on the RICO claim based on mail fraud and remanded the case to the Court of Appeals for further proceedings consistent with this opinion.” Id.

Pollman v. Swan

The common-law requirement of justifiable reliance in fraud is not a requirement of the federal mail fraud statute, and the Georgia RICO Act defines racketeering activity by referring to the federal statute.

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