Assad v. Mendell
| Decision Date | 11 August 1987 |
| Docket Number | No. 87-47,87-47 |
| Citation | 511 So.2d 682,12 Fla. L. Weekly 1943 |
| Parties | 12 Fla. L. Weekly 1943 Edward ASSAD and Risa A. Assad, his wife, Appellants, v. Herbert A. MENDELL, Jr. and Jo Marie Mendell, his wife, Howe Construction Company, Inc., a Florida corporation, and Citicorp Savings Mortgage Company of Florida, Inc., a Florida corporation, Appellees. |
| Court | Florida District Court of Appeals |
Rudolph Browd, Miami, for appellants.
Horton, Perse & Ginsberg and Mallory Horton, Moschell & Moschell, Shutts & Bowen and Don A. Lynn and John E. Meagher, Miami, for appellees.
Before NESBITT, FERGUSON and JORGENSON, JJ.
The Assads contracted to purchase a house from the Mendells. The Mendells were to provide a roof inspection at their own expense to inspect for leaks. The contract further provided that the Mendells would pay to repair any leaks discovered by the inspection. Howe Construction Company (Howe) performed the inspection and failed to discover any leaks. The Assads took a mortgage from Citicorp Savings Mortgage Company of Florida, Inc. (Citicorp), in order to finance their purchase. After the Assads moved into the house, they discovered that the roof was leaking and that repairs would cost approximately $12,000.
The Assads brought an action against the Mendells, alleging in count I that the Mendells fraudulently induced them to purchase the home by misrepresenting the condition of the roof; in count II they sought punitive damages based upon the Mendells's fraud. The Assads also brought suit against Howe and Citicorp alleging in counts III and IV, respectively, that Howe and Citicorp were liable for negligence. The trial court dismissed counts I, II and IV of the Assads' complaint with prejudice as against the Mendells and Citicorp for failure to state a cause of action. The Assads then filed this appeal.
Finding that the Assads alleged all of the necessary elements to state a cause of action for fraud against the Mendells, we reverse that portion of the trial court's order dismissing counts I and II of the Assads' complaint. However, since Citicorp's attorney did not owe a duty to the Assads, we affirm the dismissal of count IV of the Assads' complaint alleging negligence against Citicorp.
In order to state a valid cause of action for fraudulent misrepresentation the complaint must allege the following elements: "(a) the misrepresentation of a material fact [by the defendants] ... ; (b) that the defendants knew the falsity of the representation; (c) that the defendants made the representation intending that the plaintiffs would rely on it in purchasing the house; (d) that the plaintiffs did rely on the representation in purchasing the house; and (e) that the plaintiff's [sic] reliance caused damage." Rubens v. Glinsky, 473 So.2d 20, 20 (Fla. 3d DCA 1985); see also Johnson v. Davis, 480 So.2d 625, 627 (Fla.1985); American Int'l Land Corp. v. Hanna, 323 So.2d 567, 569 (Fla.1975). Additionally, "[p]unitive damages are recoverable where the tortious act complained of is fraud." Tinker v. De Maria Porsche Audi, Inc., 459 So.2d 487, 493 (Fla. 3d DCA 1984), review denied, 471 So.2d 43 (Fla.1985). The Assads alleged that the Mendells fraudulently misrepresented that the condition of the roof was good and that there were no leaks, even though the Mendells were aware that the roof was in disrepair when they made the statement. The Assads further alleged that the Mendells made the statement to induce them to close the deal on the home, and that the Assads did in fact rely on the representation and as a result suffered $12,000 in damages. Upon the Mendells motion to dismiss, the trial court should have taken these allegations as true without regard to the sufficiency of evidence the Assads were likely to produce. N.E. at West Palm Beach, Inc. v. Horowitz, 471 So.2d 570 (Fla. 3d DCA 1985); Raney v. Jimmie Diesel Corp., 362 So.2d 997 (Fla. 3d DCA 1978). Based upon these allegations, the Assads' complaint stated...
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