First Interstate Development Corp. v. Ablanedo

• Decision Date: 05 September 1985
• Docket Number: No. 84-46,84-46
• Citation: 10 Fla. L. Weekly 2069,476 So.2d 692
• Parties: 10 Fla. L. Weekly 2069 FIRST INTERSTATE DEVELOPMENT CORP., etc., et al., Appellants/Cross Appellees, v. Carlos M. ABLANEDO, et al., Appellees/Cross Appellants.
• Court: Florida District Court of Appeals

Page 692

476 So.2d 692

10 Fla. L. Weekly 2069

FIRST INTERSTATE DEVELOPMENT CORP., etc., et al., Appellants/Cross Appellees, v. Carlos M. ABLANEDO, et al., Appellees/Cross Appellants.

No. 84-46.

District Court of Appeal of Florida,

Fifth District.

Sept. 5, 1985.

Rehearing Denied Oct. 10, 1985.

John M. Starling and Richard E. Stadler of Crofton, Holland, Starling, Harris & Severs, P.A., Titusville, for appellants/cross appellees.

Sam Baxter Bardwell and Kenneth A. Studstill of Studstill & Vance, Titusville, for appellees/cross appellants.

UPCHURCH, Judge.

Appellants, First Interstate Development Corporation, Ocean Woods, Inc., and Thomas Wasdin, et al., appeal from a final judgment awarding damages to appellees Carlos M. Ablanedo, et al.

Appellants were involved in the development and sale of a Cape Canaveral real estate project known as Ocean Woods. Appellees were unit owners. Appellees sued in eight counts which included breach of fiduciary duties, fraud, and conversion. The fraud count contained allegations of misrepresentations by appellants concerning whether the entire development was "oceanfront," whether a nature trail and various recreational facilities would be provided, and whether the declaration of condominium restrictions could only be amended by a majority vote of the unit owners when, in fact, First Interstate Development had reserved a unilateral right to amend. The primary issue at the trial involved the fraud count ¹ under which punitive damages had been sought. At the end of the trial, the court entered a directed verdict in favor of appellants on appellees' punitive damages claim.

The first question we address is whether the trial court erred in refusing to grant a directed verdict in regard to alleged misrepresentations concerning the nature trail.

Appellants admitted to promising a nature trail along the north boundary of the development. Construction on the trail began in 1978, but was stopped by the City of Cape Canaveral in 1980. A nature trail along the south boundary had existed since 1980, but had only been maintained since 1982.

To support an action for fraud, a representation of a future occurrence (the promise to build the nature trail at a future date) must be made either without any intention of performing it or with the positive intention not to perform it. Home Seekers' Realty Co. v. Menear, 102 Fla. 7, 135 So. 402 (1931); Bernard Marko & Assoc. v. Steele, 230 So.2d 42 (Fla.3d DCA 1970). Neither of these requirements was proven by appellees but, conversely, the evidence at trial established that appellants not only intended to construct the nature trail, but that they commenced construction until they were stopped by the City. While evidence on this failure to furnish the trail as promised may have been the basis for a breach of contract case, it does not in itself establish an intent to defraud. Accordingly, we find the intent necessary for establishing misrepresentation concerning the nature trail is lacking, but this finding has no effect on the remaining allegations. There was clearly sufficient evidence to support the jury's determination concerning the representation that the development was "oceanfront" and that various recreational facilities would be provided.

The second question we address is whether the court erred in allowing appellees to testify as to their property damages caused by the alleged misrepresentations. The rule has been established in Florida that an owner may testify as to the value of property which he owns. Hill v. Marion County, 238 So.2d 163 (Fla. 1st DCA 1970); Harbond, Inc. v. Anderson, 134 So.2d 816 (Fla.2d DCA 1961). See generally 31 Am.Jur.2d Expert & Opinion Evidence, § 142. The rule is based on the owner's presumed familiarity with the characteristics of the property, his knowledge or acquaintance with its uses and purposes, and his experience in dealing with it. Salvage & Surplus, Inc. v. Weintraub, 131 So.2d 515 (Fla. 1st DCA 1961).

The proper measure of damages in an action for fraudulent misrepresentation concerning real property is the difference between the actual value of the property and its value had the alleged facts regarding it been true. West Florida Land Co. v. Studebaker, 37 Fla. 28, 19 So. 176, 179 (1896). See also Kimmel v. Iowa Realty Co., Inc., 339 N.W.2d 374 (Iowa 1983). Since an agreed sales price made under false representations constitutes evidence of the value which the property would have if the representations were true, the proper test for measurement of damages was used below and there was no error in allowing appellees to testify about the value of their land. See Haynes v. Cumberland Builders, Inc., 565 S.W.2d 887 (Tenn.App.1978).

Although the proper test was used, appellants contend the jury's determination of the damages suffered must be reversed because the amount attributable to the nature trail cannot be separated from the damages resulting from the other misrepresentations. There were fifty individual plaintiffs, and a separate verdict form was used for each. Except for the name of the individual plaintiff, the operative portions of the verdicts were identical, and read: "We, the Jury, find for the plaintiff ______, Unit ____, and award damages in the...