[CLC-Discussion] Fw: Seller Liability under Johnson

Mon Jul 1 10:54:47 PDT 2013

Fred is correct, as usual.  The court held that there is no "should have
known" standard placed on the seller.  The seller must have ACTUAL knowledge
of a defect.  However, once that knowledge has been established, according
to a separate Second District case , the failure to disclose for any reason
gives rise to liability.  I believe the court stated something to the effect
that the "innocent omitter is just as liable as the knowing dissembler".

Steven F. Thompson, Esq.
Thompson & Brooks
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From: clc-discussion-bounces at lists.flabarrpptl.org
[mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of
fred.dudley at hklaw.com
Sent: Monday, July 01, 2013 1:09 PM
To: debianchi236 at bellsouth.net; ian at mkpalaw.com;
thomas.cooney at browardschools.com
Cc: clc-discussion at lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Fw: Seller Liability under Johnson

A recent case decision has clarified that "negligent" misrepresentation is
NOT sufficient for cause of action under Johnson v. Davis.

Frederick Dudley | Holland & Knight
Board Certified Construction Lawyer
315 South Calhoun Street, Suite 600 | Tallahassee FL 32301
Phone 850.425.5668 | Fax 850.224.8832 | Cell 850.294.3471
 <mailto:fred.dudley at hklaw.com> fred.dudley at hklaw.com |
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From: clc-discussion-bounces at lists.flabarrpptl.org
[mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Paul V.
DeBianchi
Sent: Monday, July 01, 2013 12:52 PM
To: Ian Kravitz; Thomas C. Cooney
Cc: Construction Law Discussion
Subject: [CLC-Discussion] Fw: Seller Liability under Johnson

The reference I have is an old one but take a look at Atlantic Nat'l Bank of
Florida v. Vest, 480 So. 2d 1328, rev. denied 491 So. 2d 281, and 508 So. 2d
16 (Fla. 1987) for the elements.

"The tort is often mentioned and rarely explained.  All that must be alleged
in a suit for negligent misrep is not that that the representor intended to
make a false statement, but rather that the representation was made under
circumstances in which its falsity should have been known." Wallerstein, 573
So. 2d 9.

Elements:
      1. misrep; 2. representor must either know of the misrep, must make
the misrep w/o knowledge of its truth or falsity, or must make the rep under
circumstances in which he ought to have known of its falsity; 3. representor
must intend that the rep induce another to act; 4. injury to party acting in
justifiable reliance on misrep

Finally, Check out the Florida Standard Jury Instructions Civil
MI 8 for the elements

Here are some others.

Paul V. DeBianchi 
Paul V. DeBianchi P.A.
111 S. E. 12th St.
Fort Lauderdale, Florida, 33316-1813
Phone: 954-764-6133
Fax: 954-764-6131
E-mail: DeBianchi236 at BellSouth.net
Florida Bar Number: 155341

----- Original Message ----- 

From: Paul  <mailto:debianchi236 at bellsouth.net> V. DeBianchi 

To: Ian at mkpalaw.com ; Thomas C. Cooney
<mailto:thomas.cooney at browardschools.com>  

Cc: clc-discussion at lists.flabarrpptl.org 

Sent: Monday, July 01, 2013 12:48 PM

Subject: Re: [CLC-Discussion] Seller Liability under Johnson

Remember, also that Freud may involve a negligent misrepresentation.See
Golden v. Complete Holdings, 818 F. Supp. 1495 (M.D. Fla. 1993)

Same for innocent misrepresentation: 

Innocent Misrepresentation of Fact. According to the weight of authority,
misrepresentation of material facts, although innocently made, if acted on
by the other party to his detriment, will constitute a sufficient ground for
rescission and cancellation in equity. The real inquiry is not whether the
party making the representation know it to be false, but whether the other
party believed it to be true and was misled by it in making the contract;
and, whether the misrepresentation is made innocently or knowingly, the
effect is the same. It is as conclusive a ground of relief in equity as a
willful and false assertion, for it operates as a surprise and imposition on
the other party; and in such case the party must be held to his
representations.'  Sutton v. Cast-Crete Corp. of Fla., 197 So.2d 556
(Fla.App. 2 Dist., 1967)     See also Jones
<https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=bq%2bS2nNuuWjdM
F%2fRS7%2fbblEeMXEmm%2fHA475%2btJIby9C2PC1LIseq1YkOL4NepfYiva6EkwKhSM%2bC2%2
fUTly2pANNx9vj2%2fjg%2bq5sVCdFHQ7X9sLshAs0U42%2fOsXOTfIpoiukyOqsvmjT%2f%2f2E
CqYus%2fH8o23GqX9nnAOuwj5wF331FB1LFJLQ4n8eLgV39kUOG&ECF=Jones+v.+Walter+C.+H
ardesty%2c+Inc.%2c+1930%2c+100+Fla.+155> v. Walter C. Hardesty, Inc., 1930,
100 Fla. 155, 129
<https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=bq%2bS2nNuuWjdM
F%2fRS7%2fbblEeMXEmm%2fHA475%2btJIby9C2PC1LIseq1YkOL4NepfYiva6EkwKhSM%2bC2%2
fUTly2pANNx9vj2%2fjg%2bq5sVCdFHQ7X9sLshAs0U42%2fOsXOTfIpoiukyOqsvmjT%2f%2f2E
CqYus%2fH8o23GqX9nnAOuwj5wF331FB1LFJLQ4n8eLgV39kUOG&ECF=129+So.+497> So.
497; Peace
<https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=bq%2bS2nNuuWjdM
F%2fRS7%2fbblEeMXEmm%2fHA475%2btJIby9C2PC1LIseq1YkOL4NepfYiva6EkwKhSM%2bC2%2
fUTly2pANNx9vj2%2fjg%2bq5sVCdFHQ7X9sLshAs0U42%2fOsXOTfIpoiukyOqsvmjT%2f%2f2E
CqYus%2fH8o23GqX9nnAOuwj5wF331FB1LFJLQ4n8eLgV39kUOG&ECF=Peace+River+Phosphat
e+Min.+Co.+v.+Thomas+A.+Green%2c+Inc.%2c+1931%2c+102+Fla.+370> River
Phosphate Min. Co. v. Thomas A. Green, Inc., 1931, 102 Fla. 370, 135
<https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=bq%2bS2nNuuWjdM
F%2fRS7%2fbblEeMXEmm%2fHA475%2btJIby9C2PC1LIseq1YkOL4NepfYiva6EkwKhSM%2bC2%2
fUTly2pANNx9vj2%2fjg%2bq5sVCdFHQ7X9sLshAs0U42%2fOsXOTfIpoiukyOqsvmjT%2f%2f2E
CqYus%2fH8o23GqX9nnAOuwj5wF331FB1LFJLQ4n8eLgV39kUOG&ECF=135+So.+828> So.
828, and Robson
<https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=bq%2bS2nNuuWjdM
F%2fRS7%2fbblEeMXEmm%2fHA475%2btJIby9C2PC1LIseq1YkOL4NepfYiva6EkwKhSM%2bC2%2
fUTly2pANNx9vj2%2fjg%2bq5sVCdFHQ7X9sLshAs0U42%2fOsXOTfIpoiukyOqsvmjT%2f%2f2E
CqYus%2fH8o23GqX9nnAOuwj5wF331FB1LFJLQ4n8eLgV39kUOG&ECF=Robson+Link+%26+Co.+
v.+Leedy+Wheeler+%26+Co.%2c+1944%2c+154+Fla.+596> Link & Co. v. Leedy
Wheeler & Co., 1944, 154 Fla. 596, 18
<https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=bq%2bS2nNuuWjdM
F%2fRS7%2fbblEeMXEmm%2fHA475%2btJIby9C2PC1LIseq1YkOL4NepfYiva6EkwKhSM%2bC2%2
fUTly2pANNx9vj2%2fjg%2bq5sVCdFHQ7X9sLshAs0U42%2fOsXOTfIpoiukyOqsvmjT%2f%2f2E
CqYus%2fH8o23GqX9nnAOuwj5wF331FB1LFJLQ4n8eLgV39kUOG&ECF=18+So.2d+523> So.2d
523.

----- Original Message ----- 

From: Thomas C. Cooney <mailto:thomas.cooney at browardschools.com>  

To: Ian at mkpalaw.com 

Cc: clc-discussion at lists.flabarrpptl.org 

Sent: Monday, July 01, 2013 11:41 AM

Subject: Re: [CLC-Discussion] Seller Liability under Johnson

Ian:

The answer relates back to the Seller's knowledge of the full extent of
termite damage.  Assuming that a standard residential disclosure form was
used for your client's transaction, what were the specific disclosures
provided by the Seller regarding both inspection and treatment for
"termites, dry rot, pest or wood destroying organisms?" 

In this instance you indicate that Seller disclosed prior treatment.  Did
Seller also provide the date, type of treatment and company name?  Any
proposal/estimate/contract and/or invoice from the treating company should
have indicated the extent of infestation to be treated.  If the full extent
of infestation/damage is indicated on any proposal/estimate/contract and/or
invoice, then an argument could be made that the Seller was on notice and
would have a duty to disclose the full extent of such termite damage. 

Thomas C. Cooney, Esq.

Assistant General Counsel

Office of The General Counsel

School Board of Broward County, Florida

754-321-2050

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Ian Kravitz <Ian at mkpalaw.com> on Monday, July 01, 2013 at 10:44 AM -0400
wrote:

Interesting fact pattern.  Seller discloses prior treatment of termite
damage.  Some minor termite damage visible from buyer inspection.  In
reality, extensive termite damage had been covered up by seller using much
effort, including actually plastering rotten wood, texturing to look like
actually wood, and then painting over.  After moving in, covered up damage
begins to expand and fall from home.  Further inspection discovers extent of
damage.

Obviously some termite damage was open and obvious.  However, extent of the
damage was not open and obvious.  While a further detailed inspection may
have discovered the greater extent of damage, Johnson does not generally
require inspection when seller has intentionally covered up extent of
damage.

Any thoughts on how this one plays out if buyer sues seller for
intentionally covering up “extent” of the damage?

Ian T. Kravitz, Esquire
<http://www.mkpalaw.com/Attorneys/Ian-T-Kravitz.shtml> view my bio

Board Certified in Construction Law

AV Preeminent Rated by Martindale-Hubbell

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