Amazon v. Davidson

• Citation: 390 So.2d 383
• Decision Date: 22 October 1980
• Docket Number: No. 78-1341,78-1341
• Parties: Evelyn AMAZON, Individually and as Trustee and Surviving Director of Aqua Mundo Unit One, Inc., a Dissolved Florida Corporation, Appellant, v. Jordan DAVIDSON, Trustee and Individually, a single man, Appellee. /T4-139.
• Court: Florida District Court of Appeals

Page 383

390 So.2d 383

Evelyn AMAZON, Individually and as Trustee and Surviving Director of Aqua Mundo Unit One, Inc., a Dissolved Florida Corporation, Appellant, v. Jordan DAVIDSON, Trustee and Individually, a single man, Appellee.

No. 78-1341/T4-139.

District Court of Appeal of Florida, Fifth District.

Oct. 22, 1980.

Rehearing Denied Nov. 25, 1980.

John M. Starling, Titusville, for appellant.

Dale A. Dettmer, Melbourne, for appellee.

FRANK D. UPCHURCH, Jr., Judge.

Appellant Evelyn Amazon appeals from a summary final judgment of foreclosure which denied her fraud defenses and refused her application to release part of the lands pursuant to a mortgage release clause. We reverse.

The record established the following: Evelyn Amazon was a wealthy widow with little business experience. She knew Jordan Davidson, appellee, who lived in the same condominium building. She understood that he was a successful real estate investor. Appellee owned approximately 800 acres near Melbourne, Florida of which he contracted to sell Bernard Buoncervello 187 acres and granted a series of options to enable Buoncervello to acquire the balance. The price for the 187 acres was $467,025.00, payable $50,000.00 down and the balance to be secured by a mortgage. Appellee was aware that Buoncervello had no assets and that his ability to meet the mortgage payments was dependent upon his sale of the property.

When the contract was signed, appellee asked appellant to witness the contract. He introduced her to Buoncervello describing him as a nice Italian boy who came from wealth and intended to buy Jordan's property.

They discussed the agreement and appellee pointed out how successful he had been. He stated that real estate was an excellent investment, and that the only time there had been trouble with one of his deals, he settled with the woman involved so that she suffered no loss. He also represented that he had never foreclosed on a woman.

This meeting resulted in appellant and Buoncervello contracting to place the land in a corporation, Aqua Mundo Unit One, Inc. Appellant would contribute $94,000.00; $50,000.00 to be used as the down payment required on the purchase contract with appellee, $25,000.00 in working capital, and $19,000.00 for pre-development expenses. Buoncervello's contribution was limited to his experience and assignment of the contract to the corporation, but no money.

In July of 1974, when the mortgage payments became due, Buoncervello gave his fifty percent interest in the stock of the corporation to appellee as security for two notes. Later, appellee assumed ownership of the stock. The payment due January 1975 and all subsequent payments were not made. At that time, appellant's contributions were $125,700.00.

Appellee brought suit for foreclosure. Appellant defended alleging fraud and asserted two counterclaims and a cross claim. The trial court entered a summary final judgment of foreclosure. At that time of the judgment, appellant had paid $41,703.00 on the mortgage. Although the mortgage contained a release clause providing that one acre would be released for each $3,300.00 paid, the court did not require the equivalent release because appellant did not file a motion for release until after the judgment but before the foreclosure sale.

The trial court found that the statements made by appellee which appellant contends were fraud were matters of opinion and not of material fact and could not, as a matter of law, constitute a past or existing material fact on which fraud could be claimed.

Generally, the issue of fraud is not a proper subject of a summary judgment since it is a subtle thing requiring a full explanation of the facts and circumstances of the alleged wrong to determine if they collectively constitute a fraud. Automobile Sales, Inc. v. Federated Mutual Implement & Hardward Ins. Co., 256 So.2d 386 (Fla. 3d DCA 1972). ¹

The essential elements of a fraudulent representation for which relief can be had are: (1) a false statement concerning a specific material fact; (2) the representor's knowledge that the representation is false; (3) an intention that the representation induce another to act on it; and (4) consequent injury by the other party acting in reliance on the representation. 14 Fla.Jur. Fraud & Deceit § 9 (1957). A misrepresentation to be actionable must be one of fact rather than opinion but this rule has been recognized as having significant qualifications. Vokes v. Arthur Murray, Inc., 212 So.2d 906 (Fla. 2d DCA 1968). In Vokes, the court stated that the rule does not apply when there is a fiduciary relationship between the parties, when there has been some artifice or trick employed by the representor, when the parties do not in general deal at "arms length", or when the representee does not have an equal opportunity to determine the truth or falsity of the fact represented. Id. at 908-909.

Appellant specifically alleged the following misrepresentations:

(1) (T)hat Sonny came from Italian royalty and was extremely reliable and knowledgeable in the marketing of real estate ventures;

(2) (T)hat Sonny was a man of great wealth and came...