concurring in part and dissenting in part.
While I agree that the punitive damage award must be reversed as contrary to law, I respectfully dissent from that portion of the opinion which affirms the compensatory damage award.
At the outset I would express disagreement with the conclusion that Budget has waived any challenge to the fraud judgment. Notwithstanding some seeming inconsistent statements in its brief, Budget clearly attacks the damage award for common law fraud. The brief asserts that even though the jury might arguably have concluded that Budget did, in fact, make certain misrepresentations, Stott was not justified in relying upon those representations. Reliance is very much a factor in any recovery for fraud. It is an essential element of the right of recovery, upon which plaintiff bears the burden of proof. Scott v. Bodor, Inc. (1991) 5th Dist. Ind.App., 571 N.E.2d 313. Whether the plaintiff did in fact rely upon the misrepresentations made and whether such reliance was reasonable and justified are questions of fact for resolution by the jury. Biberstine v. New York Blower Co. (1993) 5th Dist.Ind.App., 625 N.E.2d 1308. However, as stated in Biberstine:
"[Where the evidence is so clear as to be susceptible of only one inference, it is for the court to determine as a matter of law whether plaintiff was justified in relying on the representation (Citations omitted). When confronted with representations which are 'simply not the stuff that fraud is made of, this court may find as a matter of law either that the representations are not actionable or that the plaintiff had no right to rely as a matter of law." 625 N.E.2d at 1316.
In the case before us, the newspaper advertisement offering the car at a price less than the $5800 purchase price agreed upon, was not even known to the Stotts until days after the sale had been fully consummated. There was, in fact, no reliance at all, whether justified or otherwise. See Weber v. Costin (1995) ist Dist.Ind.App., 654 N.E.2d 1130 (ordered published August 17, 1995). The purchase price and trade-in was negotiated and agreed upon. I would find that, as a matter of law, there was no representation made by Budget upon which Stott justifiably and detrimentally relied. See Gardner v. *272McClusky (1995) 5th Dist.Ind.App., 647 N.E.2d 1.
Additionally, I would note that another essential element in establishing a civil fraud action is wholly absent. Even assuming that Budget's sales people were neglectful in not knowing that the car had been advertised at a lower price, there is absolutely no evidence that they did in fact know of the advertisement. Accordingly, there was no evidence that a misrepresentation by silence, if any, as to the true purchase price, was made with the intent to deceive the Stotts. Such intent to deceive is essential to actual fraud. See Sanders v. Townsend (1987) 2d Dist.Ind.App., 509 N.E.2d 860, 865, trans. denied.
The factual analysis made in Judge Dar-den's opinion with respect to punitive damages leads to my conclusion that Stott not only failed to prove entitlement to such damages but also failed to establish actual fraud. However, I respectfully disagree with the position taken in Judge Chezem's dissent. It is her view that if fraud has been established to the satisfaction of the trier of fact, ergo, the plaintiff is also entitled to punitive damages. I believe this erroneously equates the two concepts. To be sure, in many, if not most cases in which fraud has been established, the trier of fact is warranted in also awarding punitive damages. See, e.g., Capitol Dodge, Inc. v. Haley (1972) 2d Dist., 154 Ind.App. 1, 288 N.E.2d 766. Nevertheless, not every fraud resulting in justified and detrimental reliance is infected with the degree of malice or oppressiveness necessary for punitive damages. Erie Insurance Co. v. Hickman (1993) Ind., 622 N.E.2d 515.9 Furthermore, the burden to establish entitlement to punitive damages is more onerous than the burden to prove compensable fraud. Seibert v. Mock (1987) 4th Dist.Ind.App., 510 N.E.2d 1378. One must prove the right to punitive damages by clear and convincing evidence. Hickman, supra at 520. Thus, it is clear that a plaintiff may carry the burden of proving common law fraud by the necessary preponderance but not adduce such clear and convincing evidence as to warrant punitive damages. Judge Chezem's dissent, mistakenly I believe, assumes that a "clear and convincing" burden exists to prove common law fraud. Although Estate of Reasor v. Putnam County (1994) Ind., 635 N.E.2d 153, carries such an implication, no Indiana Supreme Court case has so held. The principle is not an open invitation to reweigh evidence; nor in acknowledging the difference between proof of fraud and proof of punitive damages, are we reweighing the evidence in this case as Judge Chezem's dissent suggests. Suffice it to say that even if I were to agree with Judge Chezem's "all or nothing" analysis, my conclusion remains that in this case, the plaintiff is entitled to recover no damages, compensatory or punitive.
Even were I to agree with Judge Darden that there was sufficient evidence of actual fraud to justify submission of the question to the jury, I could not vote to affirm the judgment.
In this case, plaintiff's trial counsel repeatedly attempted to introduce a letter from the Attorney General dealing with Budget's sales practices. On each occasion, the defendant's objection to the admission as evidence was sustained. Nevertheless, plaintiffs counsel injected the contents of the letter into the proceedings during final argument.
The facts before us are more analogous to those of Troxel v. Otto (1972) 153 Ind.App. 437, 287 N.E.2d 791, than to Frankfort v. Owens (1976) 171 Ind.App. 566, 358 N.E.2d 184. In Frankfort, the comments by counsel were wholly unrelated to the issues in litigation and were an obvious attempt to inject a degree of levity at the expense of opposing counsel. This court held that the remarks, *273"although unfortunate, do not require a reversal of this cause." 358 N.E.2d at 188. Although the court stated as a reason for the holding that plaintiff had failed to move for mistrial or to admonish the jury, it is extremely unlikely that such objection or motion, if overruled, would have resulted in reversal given the nature of the comments made by counsel and the extreme unlikelihood of any impact upon the jury. On the other hand, in Troxel, supra, the repeated references were to the inadmissible and clearly prejudicial fact that defendant's subsequent death in a similar occurrence was "one more instance of her not looking." 287 N.E.2d at 792.
Here, as in Troxel, the reference to the letter was not a mere inadvertence. Given the posture of our case, in light of the evidence, it is extremely probable, as in Troxel, "that the impropriety of counsel here influenced the jury's verdict". 287 N.E.2d at 794. That prejudicial impact was visited not only upon the decision to award punitive damages, but, I believe, upon the determination to award compensatory damages for fraud. If, therefore, I am in error as to whether plaintiff was entitled to have the jury determine the issue of fraud, the determination should not be tainted by the inappropriate and prejudicial remarks of trial counsel. In that alternative scenario, the matter of common law fraud and compensatory damages should be retried.
It is my view, however, that the judgment of the trial court should be reversed in all things and that judgment should be entered for defendant.
. Actual fraud may be found to exist if the representation is made with reckless ignorance. The malice required of a successful punitive damage claim is not necessary. Block v. Lake Mortgage Co. (1992) 3d Dist.Ind.App., 601 N.E.2d 449. Judge Chezem's dissent mistakenly suggests that reckless ignorance of falsity may suffice to establish constructive fraud, but to prove actual fraud, Block, supra, clearly states to the contrary. One might argue that it is inconsistent to state that intent to deceive is essential to establish actual fraud but that reckless ignorance as to falsity will suffice. On the other hand, it may be that proof of reckless ignorance will permit an inference of intent to deceive. 37 Am.Jur.2d Fraud and Deceit § 446 (1968 & Supp.1995). It is unnecessary for us to resolve that question, however.