Under Florida law, equitable estoppel is an affirmative defense. “The elements of equitable estoppel are (1) a representation as to a material fact that is contrary to a later-asserted position, (2) reliance on that representation, and (3) a change in position detrimental to the party claiming estoppel, caused by the representation and reliance thereon.” State v. Harris, 881 So.2d 1079, 1084 (Fla. 2004). “[I]n order to work an estoppel, silence must be under such circumstances that there are both a specific opportunity and a real apparent duty to speak.” Thomas v. Dickinson, 30 So.2d 382, 384 (Fla. 1947). “The ‘representation’ upon which an estoppel may be predicated may consist of words, conduct, or, if there is a duty to speak, silence.” Lloyds Underwriters at London v. Keystone Equipment Finance Corp., 25 So.3d 89, 93 (Fla. 4th DCA 2009) (citations omitted). “The conduct ... such as to create an estoppel ... necessary to a waiver consists of willful or negligent words and admissions, or conduct, acts and acquiescence causing another to believe in a certain state of things by which such other person is or may be induced to act to his prejudice. The acts or conduct need not be positive, but can consist of failure to act or, more particularly, failure to speak when under some duty to speak.” Richards v. Dodge, 150 So.2d 477, 481 (Fla. 2d DCA 1963) (internal citations omitted).
Thus, in order to establish the defense of equitable estoppel, a defendant must prove all of the following:
The plaintiff took material action, spoke about material facts, failed to act when the plaintiff should have acted, or concealed or was silent about material facts at time when the plaintiff knew of the material facts.
The defendant relied in good faith upon the plaintiff’s material action, words, inaction, or silence.; and
The defendant’s reliance on the plaintiff’s material action, words, inaction, or silence caused the defendant to change the defendant’s position for the worse.
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