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Fw: Seller Liability under Johnson

PV
Paul V. DeBianchi
Mon, Jul 1, 2013 4:52 PM

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@BellSouth.net
Florida Bar Number: 155341

----- Original Message -----
From: Paul V. DeBianchi
To: Ian@mkpalaw.com ; Thomas C. Cooney
Cc: clc-discussion@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, 129 So. 497; Peace River Phosphate Min. Co. v. Thomas A. Green, Inc., 1931, 102 Fla. 370, 135 So. 828, and Robson Link & Co. v. Leedy Wheeler & Co., 1944, 154 Fla. 596, 18 So.2d 523.

----- Original Message -----
From: Thomas C. Cooney
To: Ian@mkpalaw.com
Cc: clc-discussion@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

Under Florida Public Records Law, emails sent and received as part of the transaction of School District business are public records.  Public records must be retained and, upon request, made available to the public and the media, except if excluded or made confidential by law.  Your email address and the contents of the email will be released in response to any request for public records, except as excluded by F.S. 119.071, 1002.22(3)(d) [student records], or any other law of the State of Florida.  If you do not want your email address to be released as part of a public record, do not send an email, rather contact this office by phone or in writing.

Ian Kravitz Ian@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
Board Certified in Construction Law
AV Preeminent Rated by Martindale-Hubbell
MALKA & KRAVITZ, P.A.
1300 Sawgrass Corporate Parkway
Suite 100
Sunrise, FL 33323
Telephone 954-514-0984
Facsimile  954-514-0985
www.YourConstructionLawFirm.com
http://www.firmsitepublisher.com/firmsites/working/m/mklawfirm2/design/images/addThis-o.png  http://www.firmsitepublisher.com/firmsites/working/m/mklawfirm2/design/images/linkedIn-o.png

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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@BellSouth.net Florida Bar Number: 155341 ----- Original Message ----- From: Paul V. DeBianchi To: Ian@mkpalaw.com ; Thomas C. Cooney Cc: clc-discussion@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, 129 So. 497; Peace River Phosphate Min. Co. v. Thomas A. Green, Inc., 1931, 102 Fla. 370, 135 So. 828, and Robson Link & Co. v. Leedy Wheeler & Co., 1944, 154 Fla. 596, 18 So.2d 523. ----- Original Message ----- From: Thomas C. Cooney To: Ian@mkpalaw.com Cc: clc-discussion@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 Under Florida Public Records Law, emails sent and received as part of the transaction of School District business are public records. Public records must be retained and, upon request, made available to the public and the media, except if excluded or made confidential by law. Your email address and the contents of the email will be released in response to any request for public records, except as excluded by F.S. 119.071, 1002.22(3)(d) [student records], or any other law of the State of Florida. If you do not want your email address to be released as part of a public record, do not send an email, rather contact this office by phone or in writing. Ian Kravitz <Ian@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 Board Certified in Construction Law AV Preeminent Rated by Martindale-Hubbell MALKA & KRAVITZ, P.A. 1300 Sawgrass Corporate Parkway Suite 100 Sunrise, FL 33323 Telephone 954-514-0984 Facsimile 954-514-0985 www.YourConstructionLawFirm.com http://www.firmsitepublisher.com/firmsites/working/m/mklawfirm2/design/images/addThis-o.png http://www.firmsitepublisher.com/firmsites/working/m/mklawfirm2/design/images/linkedIn-o.png AAA AVRated CONFIDENTIALITY NOTICE: This email is covered by the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510-2521 and (a) is or may be LEGALLY PRIVILEGED, CONFIDENTIAL, PROPRIETARY IN NATURE, OR OTHERWISE PROTECTED BY LAW FROM DISCLOSURE, and (b) is intended only for the use of the Addressee(s) named herein. If you are not the intended recipient, an addressee, or the person responsible for delivering this to an addressee, you are hereby notified that reading, using, copying, or distributing any part of this message is strictly prohibited. If you have received this electronic mail message in error, please contact us immediately and take the steps necessary to delete the message completely from your computer system. The receipt by anyone other than the intended recipient does not waive the attorney-client privilege; neither will it constitute a waiver of the work-product doctrine. TAX ADVICE DISCLAIMER: Any federal tax advice contained in this communication (including attachments) was not intended or written to be used, and it cannot be used, by you for the purpose of (1) avoiding any penalty that may be imposed by the Internal Revenue Service or (2) promoting, marketing, or recommending to another party any transaction or matter addressed herein. Although this e-mail and any attachments are believed to be free of any virus or other defect that might negatively affect any computer system into which it is received and opened, it is the responsibility of the recipient to ensure that it is virus free and no responsibility is accepted by the sender for any loss or damage arising in any way in the event that such a virus or defect exist. ------------------------------------------------------------------------------ _______________________________________________ CLC-Discussion mailing list CLC-Discussion@lists.flabarrpptl.org http://mailman.fsr.com/mailman/listinfo/clc-discussion
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FD
fred.dudley (at) hklaw.com
Mon, Jul 1, 2013 5:08 PM

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
fred.dudley@hklaw.commailto:fred.dudley@hklaw.com | www.hklaw.comhttp://www.hklaw.com/

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From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@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@BellSouth.netmailto:DeBianchi236@BellSouth.net
Florida Bar Number: 155341
----- Original Message -----
From: Paul V. DeBianchimailto:debianchi236@bellsouth.net
To: Ian@mkpalaw.commailto:Ian@mkpalaw.com ; Thomas C. Cooneymailto:thomas.cooney@browardschools.com
Cc: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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. 155https://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. 497https://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. 370https://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. 828https://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. 596https://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 523https://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. Cooneymailto:thomas.cooney@browardschools.com
To: Ian@mkpalaw.commailto:Ian@mkpalaw.com
Cc: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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

Under Florida Public Records Law, emails sent and received as part of the transaction of School District business are public records.  Public records must be retained and, upon request, made available to the public and the media, except if excluded or made confidential by law.  Your email address and the contents of the email will be released in response to any request for public records, except as excluded by F.S. 119.071, 1002.22(3)(d) [student records], or any other law of the State of Florida.  If you do not want your email address to be released as part of a public record, do not send an email, rather contact this office by phone or in writing.

Ian Kravitz <Ian@mkpalaw.commailto:Ian@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 biohttp://www.mkpalaw.com/Attorneys/Ian-T-Kravitz.shtml
Board Certified in Construction Law
AV Preeminent Rated by Martindale-Hubbell
MALKA & KRAVITZ, P.A.
1300 Sawgrass Corporate Parkway
Suite 100
Sunrise, FL 33323
Telephone 954-514-0984
Facsimile  954-514-0985
www.YourConstructionLawFirm.comhttp://www.mkpalaw.com/
http://www.firmsitepublisher.com/firmsites/working/m/mklawfirm2/design/images/addThis-o.pngcid:image001.gif@01CE7647.EC630130  http://www.firmsitepublisher.com/firmsites/working/m/mklawfirm2/design/images/linkedIn-o.pngcid:image002.gif@01CE7647.EC630130 [http://www.firmsitepublisher.com/firmsites/working/m/mklawfirm2/design/images/twitter-o.png] https://twitter.com/#!/MKPALAW  [http://www.firmsitepublisher.com/firmsites/working/m/mklawfirm2/design/images/facebook-o.png] http://www.facebook.com/MalkaKravitzPa
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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 fred.dudley@hklaw.com<mailto:fred.dudley@hklaw.com> | www.hklaw.com<http://www.hklaw.com/> ________________________________________________ Add to address book<http://www.hklaw.com/vcard.aspx?user=frdudley> | View professional biography<http://www.hklaw.com/id77/biosfrdudley> From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@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@BellSouth.net<mailto:DeBianchi236@BellSouth.net> Florida Bar Number: 155341 ----- Original Message ----- From: Paul V. DeBianchi<mailto:debianchi236@bellsouth.net> To: Ian@mkpalaw.com<mailto:Ian@mkpalaw.com> ; Thomas C. Cooney<mailto:thomas.cooney@browardschools.com> Cc: clc-discussion@lists.flabarrpptl.org<mailto:clc-discussion@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@browardschools.com> To: Ian@mkpalaw.com<mailto:Ian@mkpalaw.com> Cc: clc-discussion@lists.flabarrpptl.org<mailto:clc-discussion@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 Under Florida Public Records Law, emails sent and received as part of the transaction of School District business are public records. Public records must be retained and, upon request, made available to the public and the media, except if excluded or made confidential by law. Your email address and the contents of the email will be released in response to any request for public records, except as excluded by F.S. 119.071, 1002.22(3)(d) [student records], or any other law of the State of Florida. If you do not want your email address to be released as part of a public record, do not send an email, rather contact this office by phone or in writing. Ian Kravitz <Ian@mkpalaw.com<mailto:Ian@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> Board Certified in Construction Law AV Preeminent Rated by Martindale-Hubbell MALKA & KRAVITZ, P.A. 1300 Sawgrass Corporate Parkway Suite 100 Sunrise, FL 33323 Telephone 954-514-0984 Facsimile 954-514-0985 www.YourConstructionLawFirm.com<http://www.mkpalaw.com/> http://www.firmsitepublisher.com/firmsites/working/m/mklawfirm2/design/images/addThis-o.png<cid:image001.gif@01CE7647.EC630130> http://www.firmsitepublisher.com/firmsites/working/m/mklawfirm2/design/images/linkedIn-o.png<cid:image002.gif@01CE7647.EC630130> [http://www.firmsitepublisher.com/firmsites/working/m/mklawfirm2/design/images/twitter-o.png] <https://twitter.com/#!/MKPALAW> [http://www.firmsitepublisher.com/firmsites/working/m/mklawfirm2/design/images/facebook-o.png] <http://www.facebook.com/MalkaKravitzPa> [Email Logo] AAA AVRated<cid:image007.jpg@01CE7647.EC630130> [bc2] CONFIDENTIALITY NOTICE: This email is covered by the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510-2521 and (a) is or may be LEGALLY PRIVILEGED, CONFIDENTIAL, PROPRIETARY IN NATURE, OR OTHERWISE PROTECTED BY LAW FROM DISCLOSURE, and (b) is intended only for the use of the Addressee(s) named herein. 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If you believe you received this e-mail in error, please notify the sender immediately, delete the e-mail from your computer and do not copy or disclose it to anyone else. If you are not an existing client of H&K, do not construe anything in this e-mail to make you a client unless it contains a specific statement to that effect and do not disclose anything to H&K in reply that you expect it to hold in confidence. If you properly received this e-mail as a client, co-counsel or retained expert of H&K, you should maintain its contents in confidence in order to preserve the attorney-client or work product privilege that may be available to protect confidentiality.
Attached image Attached image Attached image Attached image
ST
Steve Thompson
Mon, Jul 1, 2013 5:54 PM

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
412 E. Madison St., Ste 900
Tampa, Fl. 33602
813-387-1821
Fax 813-387-1824

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From: clc-discussion-bounces@lists.flabarrpptl.org
[mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of
fred.dudley@hklaw.com
Sent: Monday, July 01, 2013 1:09 PM
To: debianchi236@bellsouth.net; ian@mkpalaw.com;
thomas.cooney@browardschools.com
Cc: clc-discussion@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@hklaw.com fred.dudley@hklaw.com |
http://www.hklaw.com/ www.hklaw.com

http://www.hklaw.com/vcard.aspx?user=frdudley Add to address book |
http://www.hklaw.com/id77/biosfrdudley View professional biography

From: clc-discussion-bounces@lists.flabarrpptl.org
[mailto:clc-discussion-bounces@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@BellSouth.net
Florida Bar Number: 155341

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

From: Paul  mailto:debianchi236@bellsouth.net V. DeBianchi

To: Ian@mkpalaw.com ; Thomas C. Cooney
mailto:thomas.cooney@browardschools.com

Cc: clc-discussion@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@browardschools.com

To: Ian@mkpalaw.com

Cc: clc-discussion@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

Under Florida Public Records Law, emails sent and received as part of the
transaction of School District business are public records.  Public records
must be retained and, upon request, made available to the public and the
media, except if excluded or made confidential by law.  Your email address
and the contents of the email will be released in response to any request
for public records, except as excluded by F.S. 119.071, 1002.22(3)(d)
[student records], or any other law of the State of Florida.  If you do not
want your email address to be released as part of a public record, do not
send an email, rather contact this office by phone or in writing.

Ian Kravitz Ian@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

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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 412 E. Madison St., Ste 900 Tampa, Fl. 33602 813-387-1821 Fax 813-387-1824 THE ABOVE MAY CONTAIN OR CONSTITUTE A CONFIDENTIAL AND PRIVILEGED COMMUNICATION. IF YOU ARE NOT THE INTENDED RECIPIENT, OR IF YOU HAVE OTHERWISE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY THE OFFICE OF THOMPSON & BROOKS BY TELEPHONE AT (813) 387-1821 [collect] AND INFORM THE OFFICE OF THE ERROR; AND PLEASE DESTROY OR DELETE THIS MESSAGE. THIS MESSAGE MAY NOT BE REVIEWED, PRINTED, DISPLAYED, OR RE-TRANSMITTED WITHOUT THE SENDER'S CONSENT. ALL RIGHTS PROTECTED. THERE MAY BE NO FURTHER DISTRIBUTION OR PUBLICATION OF THIS COMMUNICATION OR ITS CONTENTS WITHOUT THE EXPRESS CONSENT OF THOMPSON & BROOKS. THANK YOU. _____ From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com Sent: Monday, July 01, 2013 1:09 PM To: debianchi236@bellsouth.net; ian@mkpalaw.com; thomas.cooney@browardschools.com Cc: clc-discussion@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@hklaw.com> fred.dudley@hklaw.com | <http://www.hklaw.com/> www.hklaw.com ________________________________________________ <http://www.hklaw.com/vcard.aspx?user=frdudley> Add to address book | <http://www.hklaw.com/id77/biosfrdudley> View professional biography From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@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@BellSouth.net Florida Bar Number: 155341 ----- Original Message ----- From: Paul <mailto:debianchi236@bellsouth.net> V. DeBianchi To: Ian@mkpalaw.com ; Thomas C. Cooney <mailto:thomas.cooney@browardschools.com> Cc: clc-discussion@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@browardschools.com> To: Ian@mkpalaw.com Cc: clc-discussion@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 Under Florida Public Records Law, emails sent and received as part of the transaction of School District business are public records. Public records must be retained and, upon request, made available to the public and the media, except if excluded or made confidential by law. Your email address and the contents of the email will be released in response to any request for public records, except as excluded by F.S. 119.071, 1002.22(3)(d) [student records], or any other law of the State of Florida. If you do not want your email address to be released as part of a public record, do not send an email, rather contact this office by phone or in writing. Ian Kravitz <Ian@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 MALKA & KRAVITZ, P.A. 1300 Sawgrass Corporate Parkway Suite 100 Sunrise, FL 33323 Telephone 954-514-0984 Facsimile 954-514-0985 <http://www.mkpalaw.com/> www.YourConstructionLawFirm.com http://www.firmsitepublisher.com/firmsites/working/m/mklawfirm2/design/image s/addThis-o.png http://www.firmsitepublisher.com/firmsites/working/m/mklawfirm2/design/image s/linkedIn-o.png <https://twitter.com/#!/MKPALAW> http://www.firmsitepublisher.com/firmsites/working/m/mklawfirm2/design/image s/twitter-o.png <http://www.facebook.com/MalkaKravitzPa> http://www.firmsitepublisher.com/firmsites/working/m/mklawfirm2/design/image s/facebook-o.png Email Logo AAA AVRated bc2 CONFIDENTIALITY NOTICE: This email is covered by the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510-2521 and (a) is or may be LEGALLY PRIVILEGED, CONFIDENTIAL, PROPRIETARY IN NATURE, OR OTHERWISE PROTECTED BY LAW FROM DISCLOSURE, and (b) is intended only for the use of the Addressee(s) named herein. 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Attached image Attached image Attached image Attached image
MJ
Michael J. Schofield
Mon, Jul 1, 2013 6:01 PM

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@cphlaw.com

From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Steve Thompson
Sent: Monday, July 01, 2013 12:55 PM
To: fred.dudley@hklaw.com; debianchi236@bellsouth.net; ian@mkpalaw.com; thomas.cooney@browardschools.com
Cc: clc-discussion@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
412 E. Madison St., Ste 900
Tampa, Fl. 33602
813-387-1821
Fax 813-387-1824

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From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com
Sent: Monday, July 01, 2013 1:09 PM
To: debianchi236@bellsouth.net; ian@mkpalaw.com; thomas.cooney@browardschools.com
Cc: clc-discussion@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
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From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@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@BellSouth.net
Florida Bar Number: 155341

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

From: Paul V. DeBianchi mailto:debianchi236@bellsouth.net

To: Ian@mkpalaw.com ; Thomas C. Cooney mailto:thomas.cooney@browardschools.com

Cc: clc-discussion@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@browardschools.com>  

To: Ian@mkpalaw.com 

Cc: clc-discussion@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

 

Under Florida Public Records Law, emails sent and received as part of the transaction of School District business are public records.   Public records must be retained and, upon request, made available to the public and the media, except if excluded or made confidential by law.  Your email address and the contents of the email will be released in response to any request for public records, except as excluded by F.S. 119.071, 1002.22(3)(d) [student records], or any other law of the State of Florida.  If you do not want your email address to be released as part of a public record, do not send an email, rather contact this office by phone or in writing.

 

Ian Kravitz <Ian@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?

 

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Board Certified in Construction Law

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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@cphlaw.com From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Steve Thompson Sent: Monday, July 01, 2013 12:55 PM To: fred.dudley@hklaw.com; debianchi236@bellsouth.net; ian@mkpalaw.com; thomas.cooney@browardschools.com Cc: clc-discussion@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 412 E. Madison St., Ste 900 Tampa, Fl. 33602 813-387-1821 Fax 813-387-1824 THE ABOVE MAY CONTAIN OR CONSTITUTE A CONFIDENTIAL AND PRIVILEGED COMMUNICATION. IF YOU ARE NOT THE INTENDED RECIPIENT, OR IF YOU HAVE OTHERWISE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY THE OFFICE OF THOMPSON & BROOKS BY TELEPHONE AT (813) 387-1821 [collect] AND INFORM THE OFFICE OF THE ERROR; AND PLEASE DESTROY OR DELETE THIS MESSAGE. THIS MESSAGE MAY NOT BE REVIEWED, PRINTED, DISPLAYED, OR RE-TRANSMITTED WITHOUT THE SENDER'S CONSENT. ALL RIGHTS PROTECTED. THERE MAY BE NO FURTHER DISTRIBUTION OR PUBLICATION OF THIS COMMUNICATION OR ITS CONTENTS WITHOUT THE EXPRESS CONSENT OF THOMPSON & BROOKS. THANK YOU. ________________________________ From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com Sent: Monday, July 01, 2013 1:09 PM To: debianchi236@bellsouth.net; ian@mkpalaw.com; thomas.cooney@browardschools.com Cc: clc-discussion@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 fred.dudley@hklaw.com <mailto:fred.dudley@hklaw.com> | www.hklaw.com <http://www.hklaw.com/> ________________________________________________ Add to address book <http://www.hklaw.com/vcard.aspx?user=frdudley> | View professional biography <http://www.hklaw.com/id77/biosfrdudley> From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@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@BellSouth.net Florida Bar Number: 155341 ----- Original Message ----- From: Paul V. DeBianchi <mailto:debianchi236@bellsouth.net> To: Ian@mkpalaw.com ; Thomas C. Cooney <mailto:thomas.cooney@browardschools.com> Cc: clc-discussion@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@browardschools.com> To: Ian@mkpalaw.com Cc: clc-discussion@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 Under Florida Public Records Law, emails sent and received as part of the transaction of School District business are public records. Public records must be retained and, upon request, made available to the public and the media, except if excluded or made confidential by law. Your email address and the contents of the email will be released in response to any request for public records, except as excluded by F.S. 119.071, 1002.22(3)(d) [student records], or any other law of the State of Florida. If you do not want your email address to be released as part of a public record, do not send an email, rather contact this office by phone or in writing. Ian Kravitz <Ian@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> Board Certified in Construction Law AV Preeminent Rated by Martindale-Hubbell MALKA & KRAVITZ, P.A. 1300 Sawgrass Corporate Parkway Suite 100 Sunrise, FL 33323 Telephone 954-514-0984 Facsimile 954-514-0985 www.YourConstructionLawFirm.com <http://www.mkpalaw.com/> http://www.firmsitepublisher.com/firmsites/working/m/mklawfirm2/design/images/addThis-o.png http://www.firmsitepublisher.com/firmsites/working/m/mklawfirm2/design/images/linkedIn-o.png <https://twitter.com/#!/MKPALAW> <http://www.facebook.com/MalkaKravitzPa> AAA AVRated CONFIDENTIALITY NOTICE: This email is covered by the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510-2521 and (a) is or may be LEGALLY PRIVILEGED, CONFIDENTIAL, PROPRIETARY IN NATURE, OR OTHERWISE PROTECTED BY LAW FROM DISCLOSURE, and (b) is intended only for the use of the Addressee(s) named herein. 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Although this e-mail and any attachments are believed to be free of any virus or other defect that might negatively affect any computer system into which it is received and opened, it is the responsibility of the recipient to ensure that it is virus free and no responsibility is accepted by the sender for any loss or damage arising in any way in the event that such a virus or defect exist. ________________________________ _______________________________________________ CLC-Discussion mailing list CLC-Discussion@lists.flabarrpptl.org http://mailman.fsr.com/mailman/listinfo/clc-discussion ________________________________ ****IRS CIRCULAR 230 DISCLOSURE: TO ENSURE COMPLIANCE WITH REQUIREMENTS IMPOSED BY THE IRS, WE INFORM YOU THAT ANY TAX ADVICE CONTAINED IN THIS COMMUNICATION (INCLUDING ANY ATTACHMENTS) IS NOT INTENDED OR WRITTEN BY HOLLAND & KNIGHT LLP TO BE USED, AND CANNOT BE USED, FOR THE PURPOSE OF (I) AVOIDING TAX-RELATED PENALTIES UNDER THE INTERNAL REVENUE CODE, OR (II) PROMOTING, MARKETING, OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED MATTER HEREIN.**** ________________________________ NOTE: This e-mail is from a law firm, Holland & Knight LLP ("H&K"), and is intended solely for the use of the individual(s) to whom it is addressed. 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Attached image Attached image Attached image Attached image
NM
Nuechterlein, Michael F.
Mon, Jul 1, 2013 6:13 PM

Fred, do you have the Name of, and/or cite on,  that case?  Thanks for your help.
Mike.

From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com
Sent: Monday, July 01, 2013 1:09 PM
To: debianchi236@bellsouth.net; ian@mkpalaw.com; thomas.cooney@browardschools.com
Cc: clc-discussion@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
fred.dudley@hklaw.commailto:fred.dudley@hklaw.com | www.hklaw.comhttp://www.hklaw.com/

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From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@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@BellSouth.netmailto:DeBianchi236@BellSouth.net
Florida Bar Number: 155341
----- Original Message -----
From: Paul V. DeBianchimailto:debianchi236@bellsouth.net
To: Ian@mkpalaw.commailto:Ian@mkpalaw.com ; Thomas C. Cooneymailto:thomas.cooney@browardschools.com
Cc: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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. 155https://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. 497https://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. 370https://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. 828https://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. 596https://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 523https://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. Cooneymailto:thomas.cooney@browardschools.com
To: Ian@mkpalaw.commailto:Ian@mkpalaw.com
Cc: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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

Under Florida Public Records Law, emails sent and received as part of the transaction of School District business are public records.  Public records must be retained and, upon request, made available to the public and the media, except if excluded or made confidential by law.  Your email address and the contents of the email will be released in response to any request for public records, except as excluded by F.S. 119.071, 1002.22(3)(d) [student records], or any other law of the State of Florida.  If you do not want your email address to be released as part of a public record, do not send an email, rather contact this office by phone or in writing.

Ian Kravitz <Ian@mkpalaw.commailto:Ian@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 biohttp://www.mkpalaw.com/Attorneys/Ian-T-Kravitz.shtml
Board Certified in Construction Law
AV Preeminent Rated by Martindale-Hubbell
MALKA & KRAVITZ, P.A.
1300 Sawgrass Corporate Parkway
Suite 100
Sunrise, FL 33323
Telephone 954-514-0984
Facsimile  954-514-0985
www.YourConstructionLawFirm.comhttp://www.mkpalaw.com/
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Fred, do you have the Name of, and/or cite on, that case? Thanks for your help. Mike. From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com Sent: Monday, July 01, 2013 1:09 PM To: debianchi236@bellsouth.net; ian@mkpalaw.com; thomas.cooney@browardschools.com Cc: clc-discussion@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 fred.dudley@hklaw.com<mailto:fred.dudley@hklaw.com> | www.hklaw.com<http://www.hklaw.com/> ________________________________________________ Add to address book<http://www.hklaw.com/vcard.aspx?user=frdudley> | View professional biography<http://www.hklaw.com/id77/biosfrdudley> From: clc-discussion-bounces@lists.flabarrpptl.org<mailto:clc-discussion-bounces@lists.flabarrpptl.org> [mailto:clc-discussion-bounces@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@BellSouth.net<mailto:DeBianchi236@BellSouth.net> Florida Bar Number: 155341 ----- Original Message ----- From: Paul V. DeBianchi<mailto:debianchi236@bellsouth.net> To: Ian@mkpalaw.com<mailto:Ian@mkpalaw.com> ; Thomas C. Cooney<mailto:thomas.cooney@browardschools.com> Cc: clc-discussion@lists.flabarrpptl.org<mailto:clc-discussion@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@browardschools.com> To: Ian@mkpalaw.com<mailto:Ian@mkpalaw.com> Cc: clc-discussion@lists.flabarrpptl.org<mailto:clc-discussion@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 Under Florida Public Records Law, emails sent and received as part of the transaction of School District business are public records. Public records must be retained and, upon request, made available to the public and the media, except if excluded or made confidential by law. Your email address and the contents of the email will be released in response to any request for public records, except as excluded by F.S. 119.071, 1002.22(3)(d) [student records], or any other law of the State of Florida. If you do not want your email address to be released as part of a public record, do not send an email, rather contact this office by phone or in writing. Ian Kravitz <Ian@mkpalaw.com<mailto:Ian@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> Board Certified in Construction Law AV Preeminent Rated by Martindale-Hubbell MALKA & KRAVITZ, P.A. 1300 Sawgrass Corporate Parkway Suite 100 Sunrise, FL 33323 Telephone 954-514-0984 Facsimile 954-514-0985 www.YourConstructionLawFirm.com<http://www.mkpalaw.com/> http://www.firmsitepublisher.com/firmsites/working/m/mklawfirm2/design/images/addThis-o.png<cid:image001.gif@01CE7647.EC630130> http://www.firmsitepublisher.com/firmsites/working/m/mklawfirm2/design/images/linkedIn-o.png<cid:image002.gif@01CE7647.EC630130> [http://www.firmsitepublisher.com/firmsites/working/m/mklawfirm2/design/images/twitter-o.png] <https://twitter.com/#!/MKPALAW> [http://www.firmsitepublisher.com/firmsites/working/m/mklawfirm2/design/images/facebook-o.png] <http://www.facebook.com/MalkaKravitzPa> [Email Logo] AAA AVRated<cid:image007.jpg@01CE7647.EC630130> [bc2] CONFIDENTIALITY NOTICE: This email is covered by the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510-2521 and (a) is or may be LEGALLY PRIVILEGED, CONFIDENTIAL, PROPRIETARY IN NATURE, OR OTHERWISE PROTECTED BY LAW FROM DISCLOSURE, and (b) is intended only for the use of the Addressee(s) named herein. If you are not the intended recipient, an addressee, or the person responsible for delivering this to an addressee, you are hereby notified that reading, using, copying, or distributing any part of this message is strictly prohibited. If you have received this electronic mail message in error, please contact us immediately and take the steps necessary to delete the message completely from your computer system. The receipt by anyone other than the intended recipient does not waive the attorney-client privilege; neither will it constitute a waiver of the work-product doctrine. TAX ADVICE DISCLAIMER: Any federal tax advice contained in this communication (including attachments) was not intended or written to be used, and it cannot be used, by you for the purpose of (1) avoiding any penalty that may be imposed by the Internal Revenue Service or (2) promoting, marketing, or recommending to another party any transaction or matter addressed herein. 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If you believe you received this e-mail in error, please notify the sender immediately, delete the e-mail from your computer and do not copy or disclose it to anyone else. If you are not an existing client of H&K, do not construe anything in this e-mail to make you a client unless it contains a specific statement to that effect and do not disclose anything to H&K in reply that you expect it to hold in confidence. If you properly received this e-mail as a client, co-counsel or retained expert of H&K, you should maintain its contents in confidence in order to preserve the attorney-client or work product privilege that may be available to protect confidentiality.
Attached image Attached image Attached image Attached image
BS
Brian Stayton
Mon, Jul 1, 2013 6:42 PM

Jensen v. Bailey, attached.

B.

Brian F. Stayton
Stayton Law Group, P.A.
Bloomingdale Oaks Executive Park
1462 Bloomingdale
Valrico Florida 33596
Telephone: (813) 662-9829
Facsimile: (813) 662-9830
Brian@StaytonLawGroup.commailto:Brian@StaytonLawGroup.com
Board Certified in Construction Law

From: <Nuechterlein>, "Michael F." <mnuechterlein@carltonfields.commailto:mnuechterlein@carltonfields.com>
Date: Monday, July 1, 2013 2:13 PM
To: Fred Dudley <fred.dudley@hklaw.commailto:fred.dudley@hklaw.com>, "debianchi236@bellsouth.netmailto:debianchi236@bellsouth.net" <debianchi236@bellsouth.netmailto:debianchi236@bellsouth.net>, "ian@mkpalaw.commailto:ian@mkpalaw.com" <ian@mkpalaw.commailto:ian@mkpalaw.com>, "thomas.cooney@browardschools.commailto:thomas.cooney@browardschools.com" <thomas.cooney@browardschools.commailto:thomas.cooney@browardschools.com>
Cc: "clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org" <clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org>
Subject: Re: [CLC-Discussion] Fw: Seller Liability under Johnson

Fred, do you have the Name of, and/or cite on,  that case?  Thanks for your help.
Mike.

From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.commailto:fred.dudley@hklaw.com
Sent: Monday, July 01, 2013 1:09 PM
To: debianchi236@bellsouth.netmailto:debianchi236@bellsouth.net; ian@mkpalaw.commailto:ian@mkpalaw.com; thomas.cooney@browardschools.commailto:thomas.cooney@browardschools.com
Cc: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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
fred.dudley@hklaw.commailto:fred.dudley@hklaw.com | www.hklaw.comhttp://www.hklaw.com/

Add to address bookhttp://www.hklaw.com/vcard.aspx?user=frdudley | View professional biographyhttp://www.hklaw.com/id77/biosfrdudley
From:clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@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@BellSouth.netmailto:DeBianchi236@BellSouth.net
Florida Bar Number: 155341
----- Original Message -----
From:Paul V. DeBianchimailto:debianchi236@bellsouth.net
To:Ian@mkpalaw.commailto:Ian@mkpalaw.com ; Thomas C. Cooneymailto:thomas.cooney@browardschools.com
Cc: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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. 155https://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. 497https://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. 370https://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. 828https://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. 596https://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 523https://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. Cooneymailto:thomas.cooney@browardschools.com
To:Ian@mkpalaw.commailto:Ian@mkpalaw.com
Cc: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@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@mkpalaw.commailto:Ian@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 biohttp://www.mkpalaw.com/Attorneys/Ian-T-Kravitz.shtml
Board Certified in Construction Law
AV Preeminent Rated by Martindale-Hubbell
MALKA & KRAVITZ, P.A.
1300 Sawgrass Corporate Parkway
Suite 100
Sunrise, FL 33323
Telephone 954-514-0984
Facsimile  954-514-0985
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NOTE: This e-mail is from a law firm, Holland & Knight LLP (“H&K”), and is intended solely for the use of the individual(s) to whom it is addressed. If you believe you received this e-mail in error, please notify the sender immediately, delete the e-mail from your computer and do not copy or disclose it to anyone else. If you are not an existing client of H&K, do not construe anything in this e-mail to make you a client unless it contains a specific statement to that effect and do not disclose anything to H&K in reply that you expect it to hold in confidence. If you properly received this e-mail as a client, co-counsel or retained expert of H&K, you should maintain its contents in confidence in order to preserve the attorney-client or work product privilege that may be available to protect confidentiality.

Jensen v. Bailey, attached. B. Brian F. Stayton Stayton Law Group, P.A. Bloomingdale Oaks Executive Park 1462 Bloomingdale Valrico Florida 33596 Telephone: (813) 662-9829 Facsimile: (813) 662-9830 Brian@StaytonLawGroup.com<mailto:Brian@StaytonLawGroup.com> Board Certified in Construction Law From: <Nuechterlein>, "Michael F." <mnuechterlein@carltonfields.com<mailto:mnuechterlein@carltonfields.com>> Date: Monday, July 1, 2013 2:13 PM To: Fred Dudley <fred.dudley@hklaw.com<mailto:fred.dudley@hklaw.com>>, "debianchi236@bellsouth.net<mailto:debianchi236@bellsouth.net>" <debianchi236@bellsouth.net<mailto:debianchi236@bellsouth.net>>, "ian@mkpalaw.com<mailto:ian@mkpalaw.com>" <ian@mkpalaw.com<mailto:ian@mkpalaw.com>>, "thomas.cooney@browardschools.com<mailto:thomas.cooney@browardschools.com>" <thomas.cooney@browardschools.com<mailto:thomas.cooney@browardschools.com>> Cc: "clc-discussion@lists.flabarrpptl.org<mailto:clc-discussion@lists.flabarrpptl.org>" <clc-discussion@lists.flabarrpptl.org<mailto:clc-discussion@lists.flabarrpptl.org>> Subject: Re: [CLC-Discussion] Fw: Seller Liability under Johnson Fred, do you have the Name of, and/or cite on, that case? Thanks for your help. Mike. From: clc-discussion-bounces@lists.flabarrpptl.org<mailto:clc-discussion-bounces@lists.flabarrpptl.org> [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com<mailto:fred.dudley@hklaw.com> Sent: Monday, July 01, 2013 1:09 PM To: debianchi236@bellsouth.net<mailto:debianchi236@bellsouth.net>; ian@mkpalaw.com<mailto:ian@mkpalaw.com>; thomas.cooney@browardschools.com<mailto:thomas.cooney@browardschools.com> Cc: clc-discussion@lists.flabarrpptl.org<mailto:clc-discussion@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 fred.dudley@hklaw.com<mailto:fred.dudley@hklaw.com> | www.hklaw.com<http://www.hklaw.com/> ________________________________________________ Add to address book<http://www.hklaw.com/vcard.aspx?user=frdudley> | View professional biography<http://www.hklaw.com/id77/biosfrdudley> From:clc-discussion-bounces@lists.flabarrpptl.org<mailto:clc-discussion-bounces@lists.flabarrpptl.org> [mailto:clc-discussion-bounces@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@BellSouth.net<mailto:DeBianchi236@BellSouth.net> Florida Bar Number: 155341 ----- Original Message ----- From:Paul V. DeBianchi<mailto:debianchi236@bellsouth.net> To:Ian@mkpalaw.com<mailto:Ian@mkpalaw.com> ; Thomas C. Cooney<mailto:thomas.cooney@browardschools.com> Cc: clc-discussion@lists.flabarrpptl.org<mailto:clc-discussion@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@browardschools.com> To:Ian@mkpalaw.com<mailto:Ian@mkpalaw.com> Cc: clc-discussion@lists.flabarrpptl.org<mailto:clc-discussion@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 Under Florida Public Records Law, emails sent and received as part of the transaction of School District business are public records. Public records must be retained and, upon request, made available to the public and the media, except if excluded or made confidential by law. Your email address and the contents of the email will be released in response to any request for public records, except as excluded by F.S. 119.071, 1002.22(3)(d) [student records], or any other law of the State of Florida. If you do not want your email address to be released as part of a public record, do not send an email, rather contact this office by phone or in writing. Ian Kravitz <Ian@mkpalaw.com<mailto:Ian@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> Board Certified in Construction Law AV Preeminent Rated by Martindale-Hubbell MALKA & KRAVITZ, P.A. 1300 Sawgrass Corporate Parkway Suite 100 Sunrise, FL 33323 Telephone 954-514-0984 Facsimile 954-514-0985 www.YourConstructionLawFirm.com<http://www.mkpalaw.com/> <cid:image001.gif@01CE7647.EC630130>http://www.firmsitepublisher.com/firmsites/working/m/mklawfirm2/design/images/addThis-o.png <cid:image002.gif@01CE7647.EC630130> http://www.firmsitepublisher.com/firmsites/working/m/mklawfirm2/design/images/linkedIn-o.png [cid:image001.gif@01CE7665.2C640550] <https://twitter.com/#!/MKPALAW> [cid:image002.gif@01CE7665.2C640550] <http://www.facebook.com/MalkaKravitzPa> [cid:image003.jpg@01CE7665.2C640550] <cid:image007.jpg@01CE7647.EC630130>AAA AVRated [cid:image004.jpg@01CE7665.2C640550] CONFIDENTIALITY NOTICE: This email is covered by the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510-2521 and (a) is or may be LEGALLY PRIVILEGED, CONFIDENTIAL, PROPRIETARY IN NATURE, OR OTHERWISE PROTECTED BY LAW FROM DISCLOSURE, and (b) is intended only for the use of the Addressee(s) named herein. If you are not the intended recipient, an addressee, or the person responsible for delivering this to an addressee, you are hereby notified that reading, using, copying, or distributing any part of this message is strictly prohibited. If you have received this electronic mail message in error, please contact us immediately and take the steps necessary to delete the message completely from your computer system. The receipt by anyone other than the intended recipient does not waive the attorney-client privilege; neither will it constitute a waiver of the work-product doctrine. TAX ADVICE DISCLAIMER: Any federal tax advice contained in this communication (including attachments) was not intended or written to be used, and it cannot be used, by you for the purpose of (1) avoiding any penalty that may be imposed by the Internal Revenue Service or (2) promoting, marketing, or recommending to another party any transaction or matter addressed herein. 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Attached image Attached image Attached image Attached image
Jensenv.BaileyFla.App.2011.pdf (39.33 KB)
RB
Robert Butts
Mon, Jul 1, 2013 7:04 PM

Billian v. Mobil at 710 So. 2d 984 is very instructive on the relationship and history of fraudulent misrepresentation, negligent misrepresentation and non-disclosure.  In the instant example, the seller knew of a fact that (presumably) materially affected the price of the home.  The seller failed to disclose at least the known extent of the damage.  Consequently, this is a Johnson v. Davis type of fraud for failing to disclose.  With J v. D, the seller must “know” of a fact.  Should have known is not the standard.

If the seller made a representation, for example in a disclosure form or in the contract itself saying that they know of nothing that would materially affect the value of the home, and the representation is inaccurate, and the seller knows it or  even if the seller doesn’t know whether or not the statement is true or false, then if the buyer can prove they relied on the representation to their detriment they may also have a claim for fraudulent misrepresentation.

“Should have known” only arises in the context of a negligent misrepresentation.  First, a representation is required.  The representation has to be inaccurate.  The seller is negligent in making the representation (should have known it was inaccurate), the buyer relies, and the reliance is detrimental.

Robert P. Butts, Esq.

Board Certified as a Specialist in Construction Law

FISHER, BUTTS, SECHREST & WARNER, P.A.

5200 S.W. 91st Terrace, Suite 101

Gainesville, FL  32608

(352) 373-5922

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E-mail:  rbutts@fbswlaw.com

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From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Nuechterlein, Michael F.
Sent: Monday, July 01, 2013 2:14 PM
To: 'fred.dudley@hklaw.com'; debianchi236@bellsouth.net; ian@mkpalaw.com; thomas.cooney@browardschools.com
Cc: clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Fw: Seller Liability under Johnson

Fred, do you have the Name of, and/or cite on,  that case?  Thanks for your help.

Mike.

From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com
Sent: Monday, July 01, 2013 1:09 PM
To: debianchi236@bellsouth.net; ian@mkpalaw.com; thomas.cooney@browardschools.com
Cc: clc-discussion@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@hklaw.com fred.dudley@hklaw.com |  http://www.hklaw.com/ www.hklaw.com

http://www.hklaw.com/vcard.aspx?user=frdudley Add to address book |  http://www.hklaw.com/id77/biosfrdudley View professional biography

From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@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@BellSouth.net
Florida Bar Number: 155341

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

From: Paul V. DeBianchi mailto:debianchi236@bellsouth.net

To: Ian@mkpalaw.com ; Thomas C. Cooney mailto:thomas.cooney@browardschools.com

Cc: clc-discussion@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  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 & Co. v. Leedy Wheeler & Co., 1944, 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@browardschools.com

To: Ian@mkpalaw.com

Cc: clc-discussion@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

Under Florida Public Records Law, emails sent and received as part of the transaction of School District business are public records.  Public records must be retained and, upon request, made available to the public and the media, except if excluded or made confidential by law.  Your email address and the contents of the email will be released in response to any request for public records, except as excluded by F.S. 119.071, 1002.22(3)(d) [student records], or any other law of the State of Florida.  If you do not want your email address to be released as part of a public record, do not send an email, rather contact this office by phone or in writing.

Ian Kravitz Ian@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

MALKA & KRAVITZ, P.A.

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Suite 100

Sunrise, FL 33323

Telephone 954-514-0984

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Billian v. Mobil at 710 So. 2d 984 is very instructive on the relationship and history of fraudulent misrepresentation, negligent misrepresentation and non-disclosure. In the instant example, the seller knew of a fact that (presumably) materially affected the price of the home. The seller failed to disclose at least the known extent of the damage. Consequently, this is a Johnson v. Davis type of fraud for failing to disclose. With J v. D, the seller must “know” of a fact. Should have known is not the standard. If the seller made a representation, for example in a disclosure form or in the contract itself saying that they know of nothing that would materially affect the value of the home, and the representation is inaccurate, and the seller knows it or even if the seller doesn’t know whether or not the statement is true or false, then if the buyer can prove they relied on the representation to their detriment they may also have a claim for fraudulent misrepresentation. “Should have known” only arises in the context of a negligent misrepresentation. First, a representation is required. The representation has to be inaccurate. The seller is negligent in making the representation (should have known it was inaccurate), the buyer relies, and the reliance is detrimental. Robert P. Butts, Esq. Board Certified as a Specialist in Construction Law FISHER, BUTTS, SECHREST & WARNER, P.A. 5200 S.W. 91st Terrace, Suite 101 Gainesville, FL 32608 (352) 373-5922 (352) 373-5921 FAX E-mail: rbutts@fbswlaw.com The preceding electronic mail message (including any attachments) contains information the sender deems confidential and constitute non-public information. It is intended to be conveyed only to the designated recipient(s). If you are not an intended recipient of this message, please notify the sender by replying to this message and then delete it from your system. Use, dissemination, distribution, or reproduction of the foregoing electronic mail (including any attachments) by unintended recipients is not authorized by the sender and may be unlawful. From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Nuechterlein, Michael F. Sent: Monday, July 01, 2013 2:14 PM To: 'fred.dudley@hklaw.com'; debianchi236@bellsouth.net; ian@mkpalaw.com; thomas.cooney@browardschools.com Cc: clc-discussion@lists.flabarrpptl.org Subject: Re: [CLC-Discussion] Fw: Seller Liability under Johnson Fred, do you have the Name of, and/or cite on, that case? Thanks for your help. Mike. From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of fred.dudley@hklaw.com Sent: Monday, July 01, 2013 1:09 PM To: debianchi236@bellsouth.net; ian@mkpalaw.com; thomas.cooney@browardschools.com Cc: clc-discussion@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@hklaw.com> fred.dudley@hklaw.com | <http://www.hklaw.com/> www.hklaw.com ________________________________________________ <http://www.hklaw.com/vcard.aspx?user=frdudley> Add to address book | <http://www.hklaw.com/id77/biosfrdudley> View professional biography From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@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@BellSouth.net Florida Bar Number: 155341 ----- Original Message ----- From: Paul V. DeBianchi <mailto:debianchi236@bellsouth.net> To: Ian@mkpalaw.com ; Thomas C. Cooney <mailto:thomas.cooney@browardschools.com> Cc: clc-discussion@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 <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> & Co. v. Leedy Wheeler & Co., 1944, 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@browardschools.com> To: Ian@mkpalaw.com Cc: clc-discussion@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 Under Florida Public Records Law, emails sent and received as part of the transaction of School District business are public records. Public records must be retained and, upon request, made available to the public and the media, except if excluded or made confidential by law. Your email address and the contents of the email will be released in response to any request for public records, except as excluded by F.S. 119.071, 1002.22(3)(d) [student records], or any other law of the State of Florida. If you do not want your email address to be released as part of a public record, do not send an email, rather contact this office by phone or in writing. Ian Kravitz <Ian@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 MALKA & KRAVITZ, P.A. 1300 Sawgrass Corporate Parkway Suite 100 Sunrise, FL 33323 Telephone 954-514-0984 Facsimile 954-514-0985 <http://www.mkpalaw.com/> www.YourConstructionLawFirm.com http://www.firmsitepublisher.com/firmsites/working/m/mklawfirm2/design/images/addThis-o.png http://www.firmsitepublisher.com/firmsites/working/m/mklawfirm2/design/images/linkedIn-o.png <https://twitter.com/#!/MKPALAW> http://www.firmsitepublisher.com/firmsites/working/m/mklawfirm2/design/images/twitter-o.png <http://www.facebook.com/MalkaKravitzPa> http://www.firmsitepublisher.com/firmsites/working/m/mklawfirm2/design/images/facebook-o.png Email Logo AAA AVRated bc2 CONFIDENTIALITY NOTICE: This email is covered by the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510-2521 and (a) is or may be LEGALLY PRIVILEGED, CONFIDENTIAL, PROPRIETARY IN NATURE, OR OTHERWISE PROTECTED BY LAW FROM DISCLOSURE, and (b) is intended only for the use of the Addressee(s) named herein. 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