Mostoufi v. Presto Food Stores, Inc., 92-01138

• Decision Date: 16 April 1993
• Docket Number: No. 92-01138,92-01138
• Citation: 618 So.2d 1372
• Parties: 18 Fla. L. Week. D1018 Fred MOSTOUFI, Appellant, v. PRESTO FOOD STORES, INC., a Florida corporation, Hugh C. Robinson, III, Carol M. Robinson and Robert Stillings, Appellees.
• Court: Florida District Court of Appeals

Page 1372

618 So.2d 1372

18 Fla. L. Week. D1018

Fred MOSTOUFI, Appellant, v. PRESTO FOOD STORES, INC., a Florida corporation, Hugh C Robinson, III, Carol M. Robinson and Robert Stillings, Appellees.

No. 92-01138.

District Court of Appeal of Florida Second District.

April 16, 1993.

Rehearing Denied June 7, 1993.

Russell S. Thomas, Jodi L. Corrigan and John J. Agliano of Annis, Mitchell, Cockey, Edwards & Roehn, P.A., Tampa, for appellant.

David A. Maney of Maney, Damsker & Arledge, P.A., Tampa, and James S. Moody, Jr., Plant City, for appellees.

Vivian Garfien of Dept. of Environmental Regulation, Tallahassee, for amici curiae State, Dept. of Environmental Regulation, and Thomas W. Reese, St. Petersburg, amici curiae ManaSota-88, Inc. CAMPBELL, Acting Chief Judge.

Appellant, Fred Mostoufi, challenges the final judgment which dismissed his complaint against appellees, Presto Food Stores, Inc. (Presto), and Hugh C. Robinson, III, Carol M. Robinson and Robert Stillings, individually, as officers and directors of Presto. Appellant's two-count complaint sought monetary damages for petroleum contamination of appellant's commercial real property which appellant alleged was caused by appellees during the time that Presto owned the property as a remote predecessor in title to appellant. We affirm the dismissal of appellant's complaint for failure to state a cause of action for compensable damages against appellees.

Appellant raises two issues in this appeal. His first challenge is to the trial court's apparent finding that appellant has no cause of action for damages. Appellant asserts that neither Presto's status as a remote predecessor in title nor the doctrine of caveat emptor are valid defenses to the statutory cause of action that appellant alleges was created by section 376.313, Florida Statutes (1989). We conclude, however, that section 376.313 does not create a statutory cause of action as sought to be alleged by appellant. We further conclude that the doctrine of caveat emptor does bar appellant from recovering damages from appellees for appellant's alleged loss of market value of his commercial real property. Because of those conclusions, we need not address appellant's second issue relating to any liability of the individual appellees as officers or directors of Presto.

Appellant Mostoufi is the owner and operator of a convenience store that sells gasoline in Land-O-Lakes. Appellee Presto previously owned and operated the real property in question as a convenience store that sold gasoline for almost nine years, from February 23, 1977 through December 31, 1986. During that time, Presto installed four underground petroleum storage tanks and related gasoline dispensing equipment. In 1985, Presto leased the property to Emma and Azdollah Amroei.

Later in 1985, Presto removed quantities of water from one or more of the underground storage tanks. In July 1986, Presto abandoned one of the underground petroleum storage tanks by filling it with lime dust. The abandoned tank was never registered with the appropriate authorities.

On December 31, 1986, the Amroeis exercised their option to purchase the property from Presto. On March 19, 1987, the Amroeis conveyed the property to appellant, who alleges he believed he was purchasing a facility with only three underground storage tanks. He alleges he was unaware of the abandoned tank. However, he makes no allegations of fraud or misrepresentation by appellees in regard to his purchase of the property or in the sale to his immediate predecessor in title, the Amroeis.

On April 2, 1990, the Pasco County Department of Health and Rehabilitative Services (HRS) discovered the abandoned tank while conducting a compliance inspection of the facility. Inspectors also discovered petroleum contamination on the property. HRS notified appellant of the abandoned tank. There was no readily observable physical evidence of the presence of the tank or of the petroleum pollution. Appellant subsequently reported the contamination to Florida Department of Environmental Regulation (FDER) as required under FDER regulations and conducted a precision tank tightness test on the three petroleum tanks still in use. Those three tanks passed the test. Pasco County HRS then ordered appellant to institute a contamination assessment and remedial action under chapter 17-770, Florida Administrative Code. Appellant has taken no such remedial action and neither is he legally obligated to do so under the facts as they are presented here. See Sunshine Jr. Stores, Inc. v. State Dep't of Envtl. Regulation, 556 So.2d 1177 (Fla. 1st DCA), rev. denied, 564 So.2d 1085 (Fla.1990).

Appellant then brought his action against appellees attempting to allege in Count I a strict liability statutory cause of action based on section 376.313, and in Count II a common law negligence cause of action using section 376.313 as a statutory standard of care which appellees were alleged to have breached. A crucial factor in our conclusions derives from the fact that appellant has in paragraph sixteen of his amended complaint set forth the only allegations of damage that appear in his complaint and are pled as applicable to both counts. That paragraph states as follows:

16. As a direct and proximate result of Defendants' improper abandonment of the Abandoned Tank, Plaintiff has been damaged in that the Property has been contaminated with petroleum contamination, the discovery of contamination has reduced the value of Plaintiff's property and also that Plaintiff has been ordered to incur significant costs and expense in rehabilitating the Property.

It is without dispute that appellant grounds his complaint against appellees on the statutory language of section 376.313(3). That section, in its pertinent parts, provides as follows:

[N]othing contained in ss. 376.30-376.319 prohibits any person from bringing a cause of action in a court of competent jurisdiction for all damages resulting from a discharge or other condition of pollution covered by ss. 376.30-376.319.... [I]n any such suit, it is not necessary for such person to plead or prove negligence in any form or manner. Such person need only plead and prove the fact of the prohibited discharge or other pollutive condition and that it has occurred.

Appellant argues that section 376.313(3) creates a statutory cause of action in private parties to seek monetary damages resulting from the mere fact of the discharge of petroleum without alleging any other demonstrable damages except for alleged loss of market value. The trial judge dismissed appellant's complaint relying on Futura Realty v. Lone Star Bldg. Centers, (Eastern), Inc., 578 So.2d 363 (Fla. 3d DCA), rev. denied, 591 So.2d 181 (Fla.1991), for the rule that caveat emptor bars appellant's action against appellees for undisclosed defects in the commercial real property, particularly when appellee Presto was a remote predecessor in title to appellant.

In arguing that section 376.313(3) creates a private right of action for damages, appellant makes the following arguments in his initial brief:

This is a matter of first impression, as there is no case law interpreting the private party recovery provisions of Florida Statutes section 376.313. However, where a Florida law is patterned after a federal law, the Court must look to the interpretation of the Federal Courts for guidance in construing the Florida law.

In the Federal Courts, caveat emptor has been explicitly rejected as a defense to statutory liability under federal environmental laws. Smith Land & Improvement Corp. v. Celotex Corp., 851 F.2d 86 (3d Cir.1988) (en banc). Thus, case law requires that the Corporate Defendant's status as a remote predecessor in title is irrelevant and immaterial in determining liability for petroleum contamination under Florida Statutes section 376. So long as all facts alleged are taken as true, Mostoufi has shown that Presto has been sued not because of its status as a prior owner of contaminated land, but rather because it was a "person" who caused a discharge in violation of Florida Statutes Chapter 376. Thus, the Plaintiff has stated a cause of action against Presto upon which relief may be granted.

....

There is no case law in Florida interpreting the propriety of caveat emptor as a defense to an action brought under Florida Statutes Chapter 376. However, Florida Statutes section 376.315, unequivocally states the legislative intent that Sections 376.30-376.319 "shall be liberally construed to effect the purposes set forth under Sections 376.30-376.319 and the Federal Water Pollution Control Act" ("FWPCA") (emphasis added). The FWPCA specifically allows private party actions against any person who violates the act. 33 U.S.C.A. Sec. 1365(a). By drawing reference to a Federal statute as guidance for statutory interpretation, Florida Statutes section 376.315 mandates that Florida courts construe Florida Statutes, sections 376.30-376.319, in accordance with similarly patterned Federal law.

When a Florida statute is patterned upon Federal law on the same subject, Florida courts have consistently held that the State statute should be given the same interpretation in the State courts as its prototype has been given in the Federal courts. Pasco County School Bd. v. Florida Public Employees Relations Comm'n., 353 So.2d 108, 116 (Fla. 1st DCA 1977) (citing to Kidd v. Jacksonville, 97 Fla. 297, 120 So. 556 (1929)).

We find appellant's analogy to federal law and particularly the Federal Water Pollution Control Act (FWPCA), 33 U.S.C.A. Sec. 1365(a), puzzling in that the federal courts, including the United States Supreme Court, have clearly held that FWPCA does not create a cause of action in private parties to such compensatory damages for petroleum pollution.

Perhaps the most comprehensive discussion as to any private rights for compensatory damages that may exist by reason of the FWPCA appears in City of Evansville, Ind. v....