Bowman v. Barker

• Decision Date: 09 September 2015
• Docket Number: No. 1D14–4952.,1D14–4952.
• Citation: 172 So.3d 1013
• Parties: Thomas I. BOWMAN, Appellant, v. Jon Michael BARKER, an individual, Thomas A. Bryan, an individual, Andrew's Remodeling, Inc., A Florida Corporation, Russell F. Matthews, an individual, Wolf Construction Services, Inc., A Florida Corporation, Jack T. Tendo, an individual, Frank Glynn, an individual, Florida Properties of Jacksonville, Inc., A Florida Corporation, John D. Fox, Jr., an individual, Chris Donovan, an individual, and Stanley Bishop, Inc., d/b/a Exit Real Estate Gallery, A Florida Corporation, Appellees.
• Court: Florida District Court of Appeals

172 So.3d 1013

Thomas I. BOWMAN, Appellant

v.Jon Michael BARKER, an individual, Thomas A. Bryan, an individual, Andrew's Remodeling, Inc., A Florida Corporation, Russell F. Matthews, an individual, Wolf Construction Services, Inc., A Florida Corporation, Jack T. Tendo, an individual, Frank Glynn, an individual, Florida Properties of Jacksonville, Inc., A Florida Corporation, John D. Fox, Jr., an individual, Chris Donovan, an individual, and Stanley Bishop, Inc., d/b/a Exit Real Estate Gallery, A Florida Corporation, Appellees.

No. 1D14–4952.

District Court of Appeal of Florida, First District.

Sept. 9, 2015.

David H. Willis, Jonathan B.B. Lucas and Scott Monroe, of Willis Lucas Law Group, P.A., Jacksonville Beach, for Appellant.

Scot E. Samis, of Traub Lieberman Straus & Shrewsberry, L.L.P., St. Petersburg, for Appellee.

Opinion

KELSEY, J.

We have for review a final summary judgment in favor of appellees Jon Barker and Thomas Bryan as sellers of a residence that is alleged to have multiple serious defects that have a material adverse effect on the property's value. The standard of review is de novo. S. Nat. Track Serv., Inc. v. Gilley, 152 So.3d 13, 16 (Fla. 1st DCA 2014). Finding that the record demonstrates the existence of multiple genuine issues of material fact, we reverse and remand for a trial on the merits of Appellant's claims.

Appellant bought a house from these appellees, and alleges that he discovered numerous unresolved defects after living in it. He sued these appellees for failure to disclose known defects in the house contrary to their duty under Johnson v. Davis, 480 So.2d 625, 625–28 (Fla.1985). He also alleged that appellee Jon Barker fraudulently misrepresented the condition of the house. Appellant alleged that the other defendants contributed to the problem and caused damages in various ways related to their respective roles in the process of repairing, remodeling, inspecting, reporting about, or selling the house.

The record includes the pleadings, several depositions, and the sellers' identical conclusory affidavits denying awareness of any defects in the property at the time they sold it to Appellant. Appellees Barker and Bryan moved for summary judgment, arguing that their affidavits “negated” the knowledge element of Appellant's claim, and that there was no evidence to the contrary. They rely upon evidence that they argue supports their position on the merits, but the test is not whether there is evidence to support the position of the summary judgment movant. The test is whether there is any evidence or reasonable inference supporting the non-movant's position.

A summary judgment proceeding is not a trial by affidavit or deposition. Connell v. Sledge, 306 So.2d 194, 196 (Fla. 1st DCA 1975). When a defendant moves for summary judgment, the allegations of the complaint must be accepted as true. Graff v. McNeil, 322 So.2d 40, 43 (Fla. 1st DCA 1975). The movant must demonstrate conclusively that no genuine issue exists as to any material fact, and the court must draw every possible inference in favor of the party opposing summary judgment. Moore v. Morris, 475 So.2d 666, 668 (Fla.1985). “A summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law.” Id. Moreover, “ ‘[A]ll doubts as to the existence of a genuine issue of material fact must be resolved against the moving party’; if ‘the slightest doubt remains,’ a summary judgment cannot stand.” Brock v. Assocs. Fin., Inc., 625 So.2d 135, 135–36 (Fla. 1st DCA 1993) (quoting Fletcher Co. v. Melroe Mfg. Co., 261 So.2d 191, 193 (Fla. 1st DCA 1972) ).

Subject to these standards, we have carefully reviewed the parties' detailed arguments and the record, and find that Appellant has demonstrated the existence of facts and inferences that run counter to those upon which these appellees relied in moving for summary judgment. See DeMesme v. Stephenson, 498 So.2d 673, 675 (Fla. 1st DCA 1986) (party opposing summary judgment must demonstrate “countervailing facts or justifiable inferences from the facts presented”). The record demonstrates the existence of material triable issues. Among them are the following.

Although these appellees deny having the qualifications or experience to even know what was wrong with the property or what needed to be done to fix it, the record contains evidence that they both are very experienced in real estate and have done many other house-flipping projects like this, and many other real estate transactions. Both of them admitted to having knowledge of the very poor initial condition of the house. In fact, the sellers admitted that the house was in such bad condition that they were able to buy it for little more than the value of the land. One or both of them also admitted to knowing about the need for substantial repairs including structural damage and a failing foundation, and the existence of prior additions and unpermitted work on the house, among other things. This evidence raises a question of fact about the appellees' knowledge, as well as questions about their credibility and the plausibility of their denying knowledge of the property's substantial defects and what repairs it needed.

As we have noted in analogous circumstances, the sellers' affidavits actually highlight the existence of a genuine issue of material fact. This Court in Gilley reversed a summary judgment where an appellee's affidavit denied any knowledge of building codes or other violations, in response to a claim against him for breach of warranty by failure to disclose and for damages based on fraudulent misrepresentation. Gilley, 152 So.3d at 16 (“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.”) (emphasis added). Appellant is entitled to a trial to resolve the factual issue of what the sellers knew.

The record contains evidence that these appellees looked at the property before buying it; instructed their remodeling contractor about what work to do on the property; visited the...