[CLC-Discussion] Fw: Seller Liability under Johnson

Mon Jul 1 11:01:47 PDT 2013

But what is actual knowledge,  and how is it proven?  I find the risk is one of a jury finding the seller "should have known" since something was covered up, and just calling it "actual knowledge".  If you own the home, live in it, have repairs made, and defects are covered up with paint, etc, you may have a hard time convincing a jury you didn't have "actual knowledge"....

Michael J. Schofield

Clark, Partington, Hart, Larry, Bond, and Stackhouse

125 W Romana St,  Suite 800

Pensacola, Fl. 32502

Tel  850 434 9200

Fax 850 432 7340

Email   mschofield at cphlaw.com

From: clc-discussion-bounces at lists.flabarrpptl.org [mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Steve Thompson
Sent: Monday, July 01, 2013 12:55 PM
To: fred.dudley at hklaw.com; 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

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

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 v. Walter C. Hardesty, Inc., 1930, 100 Fla. 155 <https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=bq%2bS2nNuuWjdMF%2fRS7%2fbblEeMXEmm%2fHA475%2btJIby9C2PC1LIseq1YkOL4NepfYiva6EkwKhSM%2bC2%2fUTly2pANNx9vj2%2fjg%2bq5sVCdFHQ7X9sLshAs0U42%2fOsXOTfIpoiukyOqsvmjT%2f%2f2ECqYus%2fH8o23GqX9nnAOuwj5wF331FB1LFJLQ4n8eLgV39kUOG&ECF=Jones+v.+Walter+C.+Hardesty%2c+Inc.%2c+1930%2c+100+Fla.+155> , 129 So. 497 <https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=bq%2bS2nNuuWjdMF%2fRS7%2fbblEeMXEmm%2fHA475%2btJIby9C2PC1LIseq1YkOL4NepfYiva6EkwKhSM%2bC2%2fUTly2pANNx9vj2%2fjg%2bq5sVCdFHQ7X9sLshAs0U42%2fOsXOTfIpoiukyOqsvmjT%2f%2f2ECqYus%2fH8o23GqX9nnAOuwj5wF331FB1LFJLQ4n8eLgV39kUOG&ECF=129+So.+497> ; Peace River Phosphate Min. Co. v. Thomas A. Green, Inc., 1931, 102 Fla. 370 <https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=bq%2bS2nNuuWjdMF%2fRS7%2fbblEeMXEmm%2fHA475%2btJIby9C2PC1LIseq1YkOL4NepfYiva6EkwKhSM%2bC2%2fUTly2pANNx9vj2%2fjg%2bq5sVCdFHQ7X9sLshAs0U42%2fOsXOTfIpoiukyOqsvmjT%2f%2f2ECqYus%2fH8o23GqX9nnAOuwj5wF331FB1LFJLQ4n8eLgV39kUOG&ECF=Peace+River+Phosphate+Min.+Co.+v.+Thomas+A.+Green%2c+Inc.%2c+1931%2c+102+Fla.+370> , 135 So. 828 <https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=bq%2bS2nNuuWjdMF%2fRS7%2fbblEeMXEmm%2fHA475%2btJIby9C2PC1LIseq1YkOL4NepfYiva6EkwKhSM%2bC2%2fUTly2pANNx9vj2%2fjg%2bq5sVCdFHQ7X9sLshAs0U42%2fOsXOTfIpoiukyOqsvmjT%2f%2f2ECqYus%2fH8o23GqX9nnAOuwj5wF331FB1LFJLQ4n8eLgV39kUOG&ECF=135+So.+828> , and Robson Link & Co. v. Leedy Wheeler & Co., 1944, 154 Fla. 596 <https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=bq%2bS2nNuuWjdMF%2fRS7%2fbblEeMXEmm%2fHA475%2btJIby9C2PC1LIseq1YkOL4NepfYiva6EkwKhSM%2bC2%2fUTly2pANNx9vj2%2fjg%2bq5sVCdFHQ7X9sLshAs0U42%2fOsXOTfIpoiukyOqsvmjT%2f%2f2ECqYus%2fH8o23GqX9nnAOuwj5wF331FB1LFJLQ4n8eLgV39kUOG&ECF=Robson+Link+%26+Co.+v.+Leedy+Wheeler+%26+Co.%2c+1944%2c+154+Fla.+596> , 18 So.2d 523 <https://apps.fastcase.com/Research/Pages/Document.aspx?LTID=bq%2bS2nNuuWjdMF%2fRS7%2fbblEeMXEmm%2fHA475%2btJIby9C2PC1LIseq1YkOL4NepfYiva6EkwKhSM%2bC2%2fUTly2pANNx9vj2%2fjg%2bq5sVCdFHQ7X9sLshAs0U42%2fOsXOTfIpoiukyOqsvmjT%2f%2f2ECqYus%2fH8o23GqX9nnAOuwj5wF331FB1LFJLQ4n8eLgV39kUOG&ECF=18+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   view my bio <http://www.mkpalaw.com/Attorneys/Ian-T-Kravitz.shtml> 

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