Dorton v. Jensen

• Court: Florida District Court of Appeals
• Writing for the Court: LAZZARA; PARKER, A.C.J., and BLUE
• Citation: Dorton v. Jensen, 676 So.2d 437 (Fla. App. 1996)
• Decision Date: 16 February 1996
• Docket Number: No. 95-01739,95-01739
• Parties: 21 Fla. L. Weekly D507 Mark DORTON and Marlene Dorton, Appellants, v. Richard JENSEN and Julie Jensen, Appellees.

Page 437

676 So.2d 437

21 Fla. L. Weekly D507

Mark DORTON and Marlene Dorton, Appellants, v. Richard JENSEN and Julie Jensen, Appellees.

No. 95-01739.

District Court of Appeal of Florida Second District.

Feb. 16, 1996.

Jack D. Hoogewind, Ridge Manor, for Appellant.

Robert H. MacKenzie, Wesley Chapel, for Appellee Richard Jensen.

No appearance for Appellee Julie Jensen.

LAZZARA, Judge.

The appellants, Mark Dorton and Marlene Dorton (the Dortons), challenge the trial court's final judgment, rendered after a nonjury trial, denying their claim for rescission of a real estate transaction involving residential property purchased from the appellees, Richard Jensen and Julie Jensen (the Jensens), and granting a counterclaim for foreclosure of a purchase money mortgage. Because the trial court's judgment was induced by its erroneous view of the law announced in Johnson v. Davis, 480 So.2d 625 (Fla.1985), we reverse and remand for a new trial. ¹

The evidence presented to the trial court established the following undisputed material facts germane to our resolution of this case. The Jensens purchased the residence in December of 1989 for $42,500 and sold it to the Dortons in September of 1993 for $69,500. The Dortons made a down payment of $6,950 and secured the balance of $62,550 with a purchase money mortgage in favor of Mr. Jensen.

The Jensens testified that while living in the home water came under the back door sill during heavy rainfalls on three or four occasions. According to Mrs. Jensen, the water level caused by these rains was such that water would rush from the street, come into the yard, and hit the side of the home, causing a water mark to be left along one wall. Mr. Jensen further related that after the water receded, he found remnants of cigarettes all over the yard.

In the summer of 1992, Mr. Jensen attempted to remedy the water intrusion problem, which he characterized as minor, by caulking the bottom of the door sill with silicone. He, as well as Mrs. Jensen, testified that this procedure corrected the problem, and they never experienced any further water intrusion.

Neither of the Jensens were able to testify, however, that they ever advised the Dortons of the flooding problems attendant to the home. Furthermore, after an insurance agent advised Mr. Dorton prior to the sale of the home that flood insurance coverage was not available through the agent's company, Mr. Dorton asked Mrs. Jensen whether he should seek such coverage through FEMA, the federal flood insurance program. Mrs. Jensen responded that such coverage was unnecessary because she and her husband had never experienced high water at the home. Furthermore, it was undisputed that the Dortons had no prior knowledge of any flooding problem at the home and that had they known of this problem they would not have purchased the home.

After moving into the home, the Dortons experienced severe flooding during the course of heavy rainfalls on several occasions. This flooding caused substantial damage to the home and its contents and required the Dortons on two occasions to vacate the home on a temporary basis. After the first flood, Mr. Dorton called Mrs. Jensen and asked if the home had ever flooded. She denied that it ever had. Eventually, the Dortons ceased making the mortgage payments and later filed suit seeking rescission of their real estate transaction with the Jensens, alleging, consistent with Johnson, that the Jensens failed to disclose that the property had a latent flooding problem which materially affected its value. ² Mr. Jensen responded by counterclaiming for foreclosure of the purchase money mortgage.

In denying the Dortons' claim for rescission, the trial court acknowledged that Johnson controlled the disposition of the case. Although it determined that the Jensens did represent to the Dortons "that they had no serious water problems and that it was not necessary to buy flood insurance[,]" the trial court ultimately concluded that the Jensens had not engaged in any concealment of facts regarding flooding problems at the home because they had only experienced "minor water damage." It is apparent, therefore, that the trial court measured the Jensens' duty of disclosure in terms of the damage caused them by the high water. We conclude that this pivotal determination was not in accord with the test of Johnson.

In Johnson, the Florida Supreme Court promulgated a broad-based rule, rooted in notions of modern justice and fair...