39 Fla. L. Weekly D2220a
Contracts — Real property sale — Breach of warranty — Fraudulent
misrepresentation — Complaint alleging that defendant made fraudulent
misrepresentations and breached warranty that there existed no violations of
land use plans, zoning, restrictions, prohibitions and other requirements
imposed by governmental authority by selling to buyer a building that was
advertised as a two-bedroom modular residence but that was actually a large
storage shed that had been converted into a residence without conforming to
applicable building codes — Error to enter summary judgment for defendant where
there were factual issues as to whether defendant or her agents misrepresented
the nature of the structure, and whether the structure complied with
governmental laws and regulations — It is reasonable to infer that plaintiff
was persuaded that it was not necessary to hire an expert in home inspections or
perform some other due diligence in order to ascertain whether the structure was
a home — Court improperly found that statements made to plaintiff by defendant
between time contract was signed and closing were irrelevant — Trial court
erred by concluding that contractual warranty merged with deed at time of
closing — Appeal of judgment awarding prevailing party attorney’s fees and
costs to defendant dismissed without prejudice where fee judgment was not
addressed in initial brief
misrepresentation — Complaint alleging that defendant made fraudulent
misrepresentations and breached warranty that there existed no violations of
land use plans, zoning, restrictions, prohibitions and other requirements
imposed by governmental authority by selling to buyer a building that was
advertised as a two-bedroom modular residence but that was actually a large
storage shed that had been converted into a residence without conforming to
applicable building codes — Error to enter summary judgment for defendant where
there were factual issues as to whether defendant or her agents misrepresented
the nature of the structure, and whether the structure complied with
governmental laws and regulations — It is reasonable to infer that plaintiff
was persuaded that it was not necessary to hire an expert in home inspections or
perform some other due diligence in order to ascertain whether the structure was
a home — Court improperly found that statements made to plaintiff by defendant
between time contract was signed and closing were irrelevant — Trial court
erred by concluding that contractual warranty merged with deed at time of
closing — Appeal of judgment awarding prevailing party attorney’s fees and
costs to defendant dismissed without prejudice where fee judgment was not
addressed in initial brief
SOUTHERN NATIONAL TRACK SERVICES, INC., Appellant, v. DJ GILLEY, Appellee.
1st District. Case No. 1D13-5412. Opinion filed October 23, 2014. An appeal from
the Circuit Court for Hamilton County. Sonny Scaff, Acting Circuit Judge.
Counsel: Richard W. Glenn, Jupiter, for Appellant. Stephen C. Bullock of Brannon
Brown Haley & Bullock, P.A., Lake City, for Appellee.
1st District. Case No. 1D13-5412. Opinion filed October 23, 2014. An appeal from
the Circuit Court for Hamilton County. Sonny Scaff, Acting Circuit Judge.
Counsel: Richard W. Glenn, Jupiter, for Appellant. Stephen C. Bullock of Brannon
Brown Haley & Bullock, P.A., Lake City, for Appellee.
(THOMAS, Judge.) Appellant appeals a final summary judgment with respect to
its claims against Appellee for breach of warranty by failure to disclose and
for damages based on fraudulent misrepresentation. Appellant also appeals the
trial court’s final judgment for attorney’s fees and costs predicated on
Appellee having prevailed in this matter. As explained below, we reverse the
final summary judgment and remand the fee judgment.
its claims against Appellee for breach of warranty by failure to disclose and
for damages based on fraudulent misrepresentation. Appellant also appeals the
trial court’s final judgment for attorney’s fees and costs predicated on
Appellee having prevailed in this matter. As explained below, we reverse the
final summary judgment and remand the fee judgment.
Factual Background
This matter arises out of a real estate transaction. Appellant contracted
to purchase from Appellee a piece of property that included a number of small
cottages and one larger “modular” structure. It is this latter structure that
formed the basis of the dispute below. Through its representative, Mr. Plezia,
Appellant purchased this property for the purpose of housing Appellant’s
employees, including Mr. Plezia, when they were in the vicinity performing work
on behalf of Appellant. According to Appellant’s complaint, the structure in
question was advertised as a two-bedroom residence complete with fountain and
swimming pool.
to purchase from Appellee a piece of property that included a number of small
cottages and one larger “modular” structure. It is this latter structure that
formed the basis of the dispute below. Through its representative, Mr. Plezia,
Appellant purchased this property for the purpose of housing Appellant’s
employees, including Mr. Plezia, when they were in the vicinity performing work
on behalf of Appellant. According to Appellant’s complaint, the structure in
question was advertised as a two-bedroom residence complete with fountain and
swimming pool.
Undisputed is that Mr. Plezia did a brief walk-through of the buildings on
the property, including the modular structure, before signing a contract which
gave Appellant the right to obtain an inspection of the property within 20 days
of acceptance. The contract also provided an express warranty by Appellee that,
as of the time of closing, there existed no violations of “land use plans,
zoning, restrictions, prohibitions and other requirements imposed by
governmental authority . . . .”
the property, including the modular structure, before signing a contract which
gave Appellant the right to obtain an inspection of the property within 20 days
of acceptance. The contract also provided an express warranty by Appellee that,
as of the time of closing, there existed no violations of “land use plans,
zoning, restrictions, prohibitions and other requirements imposed by
governmental authority . . . .”
Mr. Plezia testified that by all appearances, the structure was a two-bedroom
residence. Mr. Plezia’s unrebutted testimony is that, after signing the
contract, but before the transaction was closed, Mr. Plezia walked through the
modular structure with Appellee and her daughter and discussed how, at various
times, Appellee, her daughter, and her parents resided in the structure and
other aspects of the building that Mr. Plezia testified were all typical of a
residence. Also undisputed is that, other than these walk-throughs, Appellant
took no steps to have the property inspected or to confirm that the building was
built as a residence.
residence. Mr. Plezia’s unrebutted testimony is that, after signing the
contract, but before the transaction was closed, Mr. Plezia walked through the
modular structure with Appellee and her daughter and discussed how, at various
times, Appellee, her daughter, and her parents resided in the structure and
other aspects of the building that Mr. Plezia testified were all typical of a
residence. Also undisputed is that, other than these walk-throughs, Appellant
took no steps to have the property inspected or to confirm that the building was
built as a residence.
Some months later, Mr. Plezia testified, he noticed water leakage problems
that worsened as the rainy season progressed, and he discovered what appeared to
be patches of black mold on some of the walls that had been painted over. He
also testified that later inspection revealed that the structure was not a
modular residence at all, but a large storage shed that had been converted into
a residence without conforming to the applicable building codes, permitting
regulations, and zoning laws.
that worsened as the rainy season progressed, and he discovered what appeared to
be patches of black mold on some of the walls that had been painted over. He
also testified that later inspection revealed that the structure was not a
modular residence at all, but a large storage shed that had been converted into
a residence without conforming to the applicable building codes, permitting
regulations, and zoning laws.
Appellant then filed a three count complaint for 1) breach of contractual
warranty by failure to disclose; 2) fraudulent misrepresentation; and 3)
rescission. The first count was based on the disclosure obligations mandated by
Johnson v Davis, 480 So. 2d 625 (Fla. 1985). On Appellee’s motion to
dismiss, the trial court dismissed that count based on its finding that the
property in question was commercial, not residential; therefore, the
Johnson disclosure obligations were inapplicable.1
warranty by failure to disclose; 2) fraudulent misrepresentation; and 3)
rescission. The first count was based on the disclosure obligations mandated by
Johnson v Davis, 480 So. 2d 625 (Fla. 1985). On Appellee’s motion to
dismiss, the trial court dismissed that count based on its finding that the
property in question was commercial, not residential; therefore, the
Johnson disclosure obligations were inapplicable.1
By the time the court heard the motion for summary judgment leading to the
judgment on appeal, the relevant pending claims were for breach of the warranty
as to the property’s compliance with applicable codes and regulations, the
attendant failure to disclose that the structure in question was not a
residential building, and the claim for damages flowing from those
misrepresentations about the true nature of the property.
judgment on appeal, the relevant pending claims were for breach of the warranty
as to the property’s compliance with applicable codes and regulations, the
attendant failure to disclose that the structure in question was not a
residential building, and the claim for damages flowing from those
misrepresentations about the true nature of the property.
Appellee asserted she was entitled to summary judgment, because there were no
genuine issues of material fact regarding whether Appellant failed to have the
property inspected until after signing the contract; Appellant performed little
or no due diligence; and all of the defects would have been readily discovered,
had Appellant “done its due diligence under the contract and pursuant to Florida
law” before purchasing and closing on the property. Appellee cited to portions
of Mr. Plezia’s deposition and her own affidavit in which she denied any
“knowledge of any Building Code compliance issues, any roof leaks, mold
infestation or any other alleged defects” of the property.
genuine issues of material fact regarding whether Appellant failed to have the
property inspected until after signing the contract; Appellant performed little
or no due diligence; and all of the defects would have been readily discovered,
had Appellant “done its due diligence under the contract and pursuant to Florida
law” before purchasing and closing on the property. Appellee cited to portions
of Mr. Plezia’s deposition and her own affidavit in which she denied any
“knowledge of any Building Code compliance issues, any roof leaks, mold
infestation or any other alleged defects” of the property.
In its final summary judgment, the court found that “[c]ertain material facts
to Plaintiff’s cause of action have not been established . . . in this record”
and that there was “no admissible evidence in the record to support any” claim
that Appellee breached the contract. The court also noted the contract provision
affording Appellant 20 days to have the property professionally inspected and
provide Appellee written notice of any defects. The court found it was
undisputed that Appellant did not conduct an inspection and did not provide
Appellee with any notice of defects, resulting in a waiver “as a matter of law”
of any such defects. The court also reiterated its prior judgment that, because
this case involved a contract for commercial property, Appellee had no duty to
disclose, and also found that, even if such a duty did exist, “the record
supports the undisputed facts that Defendant did not fail to disclose any known
defects regarding the property.” The court also found “from the record” that the
contract, “along with the Seller’s duties, merged with the Deed at the time of
closing.” The court further found that the record did “not support any material
facts that Defendant committed any fraud or misrepresentation regarding any
alleged defects in this commercial transaction” and demonstrated that
Appellant’s representative, Mr. Plezia, “did not have any verbal communication
with the Defendant prior to negotiating and signing the Contract and, therefore,
any statements made by Defendant thenceforth would be irrelevant.”
to Plaintiff’s cause of action have not been established . . . in this record”
and that there was “no admissible evidence in the record to support any” claim
that Appellee breached the contract. The court also noted the contract provision
affording Appellant 20 days to have the property professionally inspected and
provide Appellee written notice of any defects. The court found it was
undisputed that Appellant did not conduct an inspection and did not provide
Appellee with any notice of defects, resulting in a waiver “as a matter of law”
of any such defects. The court also reiterated its prior judgment that, because
this case involved a contract for commercial property, Appellee had no duty to
disclose, and also found that, even if such a duty did exist, “the record
supports the undisputed facts that Defendant did not fail to disclose any known
defects regarding the property.” The court also found “from the record” that the
contract, “along with the Seller’s duties, merged with the Deed at the time of
closing.” The court further found that the record did “not support any material
facts that Defendant committed any fraud or misrepresentation regarding any
alleged defects in this commercial transaction” and demonstrated that
Appellant’s representative, Mr. Plezia, “did not have any verbal communication
with the Defendant prior to negotiating and signing the Contract and, therefore,
any statements made by Defendant thenceforth would be irrelevant.”
Substantive Analysis
The standard of review of a final summary judgment is de novo. Le v.
Lighthouse Assocs., Inc., 57 So. 3d 283, 284 (Fla. 4th DCA 2011). “Summary
judgment is proper only if (1) no genuine issue of material fact exists, viewing
every possible inference in favor of the party against whom summary judgment has
been entered, and (2) the moving party is entitled to a judgment as a matter of
law.” Armiger v. Associated Outdoor Clubs, Inc., 48 So. 3d 864, 869 (Fla.
2d DCA 2010) (citations omitted). “If the record reflects the existence of any
genuine issue of material fact or the possibility of any issue, or if the record
raises even the slightest doubt that an issue might exist, summary judgment is
improper.” Holland v. Verheul, 583 So. 2d 788, 789 (Fla. 2d DCA 1991).
Lighthouse Assocs., Inc., 57 So. 3d 283, 284 (Fla. 4th DCA 2011). “Summary
judgment is proper only if (1) no genuine issue of material fact exists, viewing
every possible inference in favor of the party against whom summary judgment has
been entered, and (2) the moving party is entitled to a judgment as a matter of
law.” Armiger v. Associated Outdoor Clubs, Inc., 48 So. 3d 864, 869 (Fla.
2d DCA 2010) (citations omitted). “If the record reflects the existence of any
genuine issue of material fact or the possibility of any issue, or if the record
raises even the slightest doubt that an issue might exist, summary judgment is
improper.” Holland v. Verheul, 583 So. 2d 788, 789 (Fla. 2d DCA 1991).
A party seeking summary judgment faces a significant burden, and based upon
our review of the record, Appellee failed to overcome this burden. The trial
court did not view the facts through the appropriate lens, because it did not
acknowledge the different inferences that could be drawn from the facts,
particularly those inferences reasonably drawn in Appellant’s favor.
our review of the record, Appellee failed to overcome this burden. The trial
court did not view the facts through the appropriate lens, because it did not
acknowledge the different inferences that could be drawn from the facts,
particularly those inferences reasonably drawn in Appellant’s favor.
We hold that there are genuine issues of material fact concerning whether
Appellee, either directly or through her agents, misrepresented: 1) the very
nature of the structure in question (i.e., a genuine residence built to those
standards applying to residences, as opposed to a storage shed converted to a
“residence” and not complying with such standards); and 2) whether the structure
complied with various governmental laws and regulations. The fact that
Appellee’s affidavit denied any knowledge of building codes or other violations
only highlights the existence of a conflict in the facts, which generally
precludes summary judgment rather than proves that no conflict exists.
Appellee, either directly or through her agents, misrepresented: 1) the very
nature of the structure in question (i.e., a genuine residence built to those
standards applying to residences, as opposed to a storage shed converted to a
“residence” and not complying with such standards); and 2) whether the structure
complied with various governmental laws and regulations. The fact that
Appellee’s affidavit denied any knowledge of building codes or other violations
only highlights the existence of a conflict in the facts, which generally
precludes summary judgment rather than proves that no conflict exists.
The trial court attached great significance to the fact that any statements
Appellee may have made to Appellant occurred after the contract was signed, but
before closing. The court found that any such statements made during this period
would be “irrelevant,” and cited Wasser v. Sasoni, 652 So. 2d 411 (Fla.
3d DCA 1995). But Wasser does not address the timing of any alleged
misrepresentations (i.e., after a contract was signed but before closing);
rather, it holds that “an intentional nondisclosure of known facts materially
affecting the value of commercial property, is not actionable under Florida
law,” and that “a misrepresentation is not actionable where its truth might have
been discovered by the exercise of ordinary diligence.” Id. 412.
Appellee may have made to Appellant occurred after the contract was signed, but
before closing. The court found that any such statements made during this period
would be “irrelevant,” and cited Wasser v. Sasoni, 652 So. 2d 411 (Fla.
3d DCA 1995). But Wasser does not address the timing of any alleged
misrepresentations (i.e., after a contract was signed but before closing);
rather, it holds that “an intentional nondisclosure of known facts materially
affecting the value of commercial property, is not actionable under Florida
law,” and that “a misrepresentation is not actionable where its truth might have
been discovered by the exercise of ordinary diligence.” Id. 412.
Notably, the Wasser court recognized that “exceptions to the general
rule could exist under certain circumstances, for example, where specific
misrepresentations regarding a latent defect are made to a negligent purchaser.”
Id. at 412-13. Here, as discussed below, there were facts from which one
could reasonably infer intentional non-disclosure or possible misrepresentations
about latent defects (e.g., the non-residential nature of the structure).
Furthermore, even “ordinary diligence” would not have revealed the truth
regarding these possible scenarios. The Wasser court explained that “a
negligent purchaser is not justified in relying upon a misrepresentation which
is obviously false, and ‘which would be patent to him if he had utilized
his opportunity to make a cursory examination or investigation.’ ” Id. at
413 (quoting Besett v. Basnett, 389 So. 2d 995, 997 (Fla.1980) (emphasis
added)). But again, as discussed below, there was conflicting evidence as to
whether any representation that the structure in question was a residence was
“obviously false.”
rule could exist under certain circumstances, for example, where specific
misrepresentations regarding a latent defect are made to a negligent purchaser.”
Id. at 412-13. Here, as discussed below, there were facts from which one
could reasonably infer intentional non-disclosure or possible misrepresentations
about latent defects (e.g., the non-residential nature of the structure).
Furthermore, even “ordinary diligence” would not have revealed the truth
regarding these possible scenarios. The Wasser court explained that “a
negligent purchaser is not justified in relying upon a misrepresentation which
is obviously false, and ‘which would be patent to him if he had utilized
his opportunity to make a cursory examination or investigation.’ ” Id. at
413 (quoting Besett v. Basnett, 389 So. 2d 995, 997 (Fla.1980) (emphasis
added)). But again, as discussed below, there was conflicting evidence as to
whether any representation that the structure in question was a residence was
“obviously false.”
Attached to both Mr. Plezia’s deposition and affidavit was a copy of the real
estate advertisement concerning the property, including the structure in
question, from which it could readily and reasonably be inferred that it was a
two-bedroom home complete with swimming pool and other accoutrements typical of
residences, not storage sheds. Mr. Plezia testified that he walked through the
structure with the real estate agent before signing the contract and saw nothing
to indicate that the structure was anything other than a modular residence. He
did another walk-through with Appellee herself before closing, during which,
according to Mr. Plezia, Appellee made various representations which could
reasonably be inferred to represent the structure was a purpose-built home, and
not a converted storage shed. We also note that the very contractual provision
allowing for inspection, upon which Appellee and the court rely so heavily,
referred to Appellant’s right to retain an entity for a person “specializing in
home inspections.” Thus, the contractual language itself perpetuated the notion
that the structure in question was a “home,” as commonly understood.
estate advertisement concerning the property, including the structure in
question, from which it could readily and reasonably be inferred that it was a
two-bedroom home complete with swimming pool and other accoutrements typical of
residences, not storage sheds. Mr. Plezia testified that he walked through the
structure with the real estate agent before signing the contract and saw nothing
to indicate that the structure was anything other than a modular residence. He
did another walk-through with Appellee herself before closing, during which,
according to Mr. Plezia, Appellee made various representations which could
reasonably be inferred to represent the structure was a purpose-built home, and
not a converted storage shed. We also note that the very contractual provision
allowing for inspection, upon which Appellee and the court rely so heavily,
referred to Appellant’s right to retain an entity for a person “specializing in
home inspections.” Thus, the contractual language itself perpetuated the notion
that the structure in question was a “home,” as commonly understood.
From all of this, it is reasonable to infer that these facts as alleged
persuaded Mr. Plezia that it was not necessary to hire an expert in “home
inspections” or perform some other “due diligence” in order to ascertain whether
the structure was a home. He testified that he had purchased homes in the past
and never did either of these things. This is important because there are facts
in the record to support the inference that, because the structure was actually
a converted storage shed and not a purpose-built home, all of the other defects
complained of flowed from this fact.
persuaded Mr. Plezia that it was not necessary to hire an expert in “home
inspections” or perform some other “due diligence” in order to ascertain whether
the structure was a home. He testified that he had purchased homes in the past
and never did either of these things. This is important because there are facts
in the record to support the inference that, because the structure was actually
a converted storage shed and not a purpose-built home, all of the other defects
complained of flowed from this fact.
Furthermore, Mr. Plezia testified that he found what looked like black mold
that had been painted over. Considering his testimony that Appellee told him she
personally had lived in the “home,” one could reasonably infer that she had
knowledge of this and, therefore, acquiesced in concealing this defect. Nor is
it clear how the court concluded from this record that an inspection would have
revealed this alleged mold, as the mold did not reveal itself until after the
alleged leaks began, leaks that may not have occurred had the roof been built
according to residential standards, as opposed to storage shed standards. Of
course, we express no opinion on whether Appellant will successfully prove these
inferences are credible, which must be defined in a trial on the merits of the
allegations.
that had been painted over. Considering his testimony that Appellee told him she
personally had lived in the “home,” one could reasonably infer that she had
knowledge of this and, therefore, acquiesced in concealing this defect. Nor is
it clear how the court concluded from this record that an inspection would have
revealed this alleged mold, as the mold did not reveal itself until after the
alleged leaks began, leaks that may not have occurred had the roof been built
according to residential standards, as opposed to storage shed standards. Of
course, we express no opinion on whether Appellant will successfully prove these
inferences are credible, which must be defined in a trial on the merits of the
allegations.
We last address the trial court’s summary conclusion that the contractual
warranty at issue merged with the deed at the time of closing, thus, presumably,
precluding Appellant’s claim. The court cited as support for its conclusion
Stephan v. Brown, 233 So. 2d 140 (Fla. 2d DCA 1970). That case stands for
the proposition that a real estate contract becomes merged with the deed and
that, absent the existence of a warranty in the deed, the seller is “under no
duty or obligation with respect to any warranty against encumbrances on the
property after the deed had been accepted by the purchaser.” Id. at 141.
warranty at issue merged with the deed at the time of closing, thus, presumably,
precluding Appellant’s claim. The court cited as support for its conclusion
Stephan v. Brown, 233 So. 2d 140 (Fla. 2d DCA 1970). That case stands for
the proposition that a real estate contract becomes merged with the deed and
that, absent the existence of a warranty in the deed, the seller is “under no
duty or obligation with respect to any warranty against encumbrances on the
property after the deed had been accepted by the purchaser.” Id. at 141.
In Sager v. Turner, however, the real estate sale contract for a
mobile home park included a contractual provision similar to the one here:
“Seller warrants that at the time of closing there are no violations of
licenses, permits, planning or zoning ordinances, easements land or deed
restrictions.” 402 So. 2d 1282 (Fla. 4th DCA 1981). In Turner, after the
deal closed, the buyer went to the city in which the property was located to
obtain a license. The city “issued a conditional license, contingent upon
[buyer’s] repair of all mechanical, electrical and plumbing violations which
existed. [Buyer] made the required repairs and brought this action to recover
its expenditures in so doing.” Id. The purchaser succeeded in obtaining a
summary judgment, and the seller appealed, arguing reversal was warranted based
on the merger doctrine pursuant to Fraser v. Schoenfeld, 364 So. 2d 533
(Fla. 3d DCA 1978). Id.
mobile home park included a contractual provision similar to the one here:
“Seller warrants that at the time of closing there are no violations of
licenses, permits, planning or zoning ordinances, easements land or deed
restrictions.” 402 So. 2d 1282 (Fla. 4th DCA 1981). In Turner, after the
deal closed, the buyer went to the city in which the property was located to
obtain a license. The city “issued a conditional license, contingent upon
[buyer’s] repair of all mechanical, electrical and plumbing violations which
existed. [Buyer] made the required repairs and brought this action to recover
its expenditures in so doing.” Id. The purchaser succeeded in obtaining a
summary judgment, and the seller appealed, arguing reversal was warranted based
on the merger doctrine pursuant to Fraser v. Schoenfeld, 364 So. 2d 533
(Fla. 3d DCA 1978). Id.
In Fraser, which relied on the same cases as Brown, the Third
District found the buyer’s claim for damages based on breach of a similar
warranty, with respect to municipal code compliance, was barred by merger,
holding: “ ‘where, as here, the purchaser has knowledge of claimed violations
and, thereafter, closes the deal, he is precluded by the doctrine of merger from
a subsequent suit on a covenant contained in the contract of sale.’ ”
Turner, 402 So. 2d at 1283 (quoting Fraser, 364 So. 2d at 534).
The Turner court reversed the trial court’s summary judgment because,
unlike in Fraser, the buyer in Turner did not have any
prior knowledge of the claimed code violations. Id. at 1283.
District found the buyer’s claim for damages based on breach of a similar
warranty, with respect to municipal code compliance, was barred by merger,
holding: “ ‘where, as here, the purchaser has knowledge of claimed violations
and, thereafter, closes the deal, he is precluded by the doctrine of merger from
a subsequent suit on a covenant contained in the contract of sale.’ ”
Turner, 402 So. 2d at 1283 (quoting Fraser, 364 So. 2d at 534).
The Turner court reversed the trial court’s summary judgment because,
unlike in Fraser, the buyer in Turner did not have any
prior knowledge of the claimed code violations. Id. at 1283.
It is a general rule that preliminary agreements and understandings
relative to the sale of property usually merge in the deed executed pursuant
thereto. However, there are exceptions to the merger rule. The rule that
acceptance of a deed tendered in performance of a contract to convey land merges
or extinguishes the covenants and stipulations contained in the contract does
not apply to those provisions of the antecedent contract which the parties do
not intend to be incorporated in the deed, or which are not necessarily
performed or satisfied by the execution and delivery of the stipulated
conveyance.
Id. (quoting Milu, Inc. v. Duke, 204 So. 2d 31, 33 (Fla. 3d DCA
1967) (citation omitted; emphasis added). In affirming the summary judgment, the
Turner court found that the evidence was uncontradicted that “the city
license could not be obtained because of violations which existed at closing.”
Id.
1967) (citation omitted; emphasis added). In affirming the summary judgment, the
Turner court found that the evidence was uncontradicted that “the city
license could not be obtained because of violations which existed at closing.”
Id.
Here, there is no evidence that the parties intended for the warranty at
issue to merge with the deed. Also, Appellant could not use the structure in
question as a result of zoning and building code violations that existed at the
time of closing, and its ability to use the structure as a residence was not
“necessarily performed or satisfied by the execution and delivery of the
stipulated conveyance.” Thus, the trial court erred in granting summary judgment
based on the merger doctrine.
issue to merge with the deed. Also, Appellant could not use the structure in
question as a result of zoning and building code violations that existed at the
time of closing, and its ability to use the structure as a residence was not
“necessarily performed or satisfied by the execution and delivery of the
stipulated conveyance.” Thus, the trial court erred in granting summary judgment
based on the merger doctrine.
Judgment for Attorney’s Fees and Costs
The trial court entered a judgment for attorney’s fees and costs in favor
of Appellee, and Appellant duly included with its notice of appeal this judgment
as one of the orders it was challenging. As Appellee correctly points out,
however, Appellant did not address this fee judgment in its initial brief; thus,
Appellee filed a motion to dismiss Appellant’s appeal of this judgment.
Appellant responds that the judgment is entirely predicated on Appellee having
obtained the summary judgment on appeal, thus, if the summary judgment is
reversed, this court must vacate the fee judgment.
of Appellee, and Appellant duly included with its notice of appeal this judgment
as one of the orders it was challenging. As Appellee correctly points out,
however, Appellant did not address this fee judgment in its initial brief; thus,
Appellee filed a motion to dismiss Appellant’s appeal of this judgment.
Appellant responds that the judgment is entirely predicated on Appellee having
obtained the summary judgment on appeal, thus, if the summary judgment is
reversed, this court must vacate the fee judgment.
As a general rule, failure to address an issue raised on appeal results in
waiver, but Appellant is correct that “[o]nce a final judgment is reversed and
remanded by an appellate court, there can be no prevailing party for purposes of
an award of prevailing party attorney’s fees. Consequently, an award of
attorney’s fees and costs predicated on a reversed or vacated final judgment
also must be reversed.” Marty v. Bainter, 727 So. 2d 1124, 1125 (Fla. 1st
DCA 1999). Rather than relying on this principle, however, the proper and
preferred practice for a party appealing a fee judgment, which is predicated on
the underlying substantive judgment on appeal, is to make some argument in the
appropriate brief(s) as to why the fee judgment should also be reversed, citing
appropriate authority.
waiver, but Appellant is correct that “[o]nce a final judgment is reversed and
remanded by an appellate court, there can be no prevailing party for purposes of
an award of prevailing party attorney’s fees. Consequently, an award of
attorney’s fees and costs predicated on a reversed or vacated final judgment
also must be reversed.” Marty v. Bainter, 727 So. 2d 1124, 1125 (Fla. 1st
DCA 1999). Rather than relying on this principle, however, the proper and
preferred practice for a party appealing a fee judgment, which is predicated on
the underlying substantive judgment on appeal, is to make some argument in the
appropriate brief(s) as to why the fee judgment should also be reversed, citing
appropriate authority.
Due to Appellant’s failure to raise any argument challenging the attorney’s
fee award, we grant Appellee’s motion to dismiss Appellant’s appeal of the
judgment for attorney’s fees and costs. Our dismissal is without prejudice, in
the event Appellant prevails on the merits below, and Appellant timely
challenges the judgment for attorney’s fees and costs under Bainter.
fee award, we grant Appellee’s motion to dismiss Appellant’s appeal of the
judgment for attorney’s fees and costs. Our dismissal is without prejudice, in
the event Appellant prevails on the merits below, and Appellant timely
challenges the judgment for attorney’s fees and costs under Bainter.
Conclusion
We reverse the final summary judgment and remand for further proceedings
consistent with this opinion.
consistent with this opinion.
REVERSED and REMANDED. (PADOVANO and CLARK, JJ., CONCUR.)
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1Appellant also ultimately dropped its
rescission claim.
rescission claim.
* * *