FIRST NAT. BANK AND TRUST CO. OF TREASURER COAST v. Pack
| Decision Date | 13 June 2001 |
| Docket Number | No. 4D00-1959.,4D00-1959. |
| Parties | FIRST NATIONAL BANK AND TRUST COMPANY OF the TREASURER COAST, Successor by Merger with Port St. Lucie National Bank, a holding corporation, Appellant/Cross-Appellee, v. Charles PACK and Diana Pack, Appellees/Cross-Appellants. |
| Court | Florida District Court of Appeals |
Steven L. Perry of McCarthy, Summers, Bobko, Wood, Sawyer & Perry, P.A., Stuart, for appellant and cross-appellee.
John W. Madden of Jones, Madden & Grosso, P.L.C., Stuart, for appellees and cross-appellants.
First National Bank and Trust Company (First National) appeals a final judgment awarding compensatory damages to Charles and Diana Pack (Packs) based on a claim for breach of a fiduciary duty. The Packs cross-appeal an order of dismissal with prejudice of their claim for fraudulent inducement. We affirm the final judgment awarding compensatory damages for breach of a fiduciary duty and find it unnecessary to reach the crossappeal because the damages that could have been awarded under a claim for fraudulent inducement are the same damages which were awarded to the Packs for breach of a fiduciary duty.
The Packs' cause of action for breach of fiduciary duty was tried to a jury. First National argues that the trial court erred in failing to grant its motion for directed verdict. The evidence and reasonable inferences adduced therefrom at the trial below must be viewed in a light most favorable to the non-moving party. All conflicts in the evidence must be resolved in favor of the Packs as the nonmoving party. See Easton-Babcock & Assocs., Inc. v. Fernandez, 706 So.2d 916 (Fla. 3d DCA 1998)
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In April 1994, the Packs visited a housing development which was being developed by Floridian Homes, Inc. (Floridian Homes). During this visit, the Packs inspected a model home constructed by Floridian Homes which also served as a sales office. At the model home, a representative from First National was present to offer construction loans to prospective buyers. While meeting with the onsite representative of First National, the Packs discussed the loan package being offered and how that process worked in conjunction with Floridian Homes. At that time, First National's representative stated that it had entered into many construction loan agreements with people who used Floridian Homes as their builder and that it had an excellent relationship with Floridian Homes. First National represented that Floridian Homes was a quality company. Shortly thereafter, the Packs entered into a construction contract with Floridian Homes. On May 23, 1994, the Packs entered into a construction loan agreement with First National with an anticipated completion date of November 12, 1994.
The scheduled construction did not proceed smoothly. Although construction was to begin shortly after the signing of the construction contract, there was no activity for two months. The Packs were unsuccessful in getting a response from Floridian Homes and therefore contacted First National to inquire as to whether this two month delay was normal and to request that First National intercede with Floridian Homes to get the construction underway. Within a few days of the communication with First National, Floridian Homes began to clear the lot and after another month delay, began construction. During the construction of their home, the Packs continued to encounter delays and what they perceived to be poor workmanship in the construction. From time to time the Packs would contact First National and ask it to intercede with Floridian Homes which it did with varying degrees of success.
November 12, 1994, came and went without the completion of the construction. A closing was scheduled for May 11, 1995, and on May 10, 1995, Mr. Pack wrote to First National asking that it freeze the final draw because they were continuing to have difficulty with Floridian Homes. Mrs. Pack testified that she spoke to either Donna Newman or Donna Dubois, who were employees of First National working in the construction and mortgage/loan department, and complained that there were serious construction defects with the house. Mrs. Pack said that she told either Newman or Dubois that the paint was coming off in chunks, water leaked into the garage, the planter was installed incorrectly, and there was a "bump out" outside the master bedroom that extended a sufficient distance beyond the normal alignment of the house causing water to collect resulting in deterioration. A representative from First National was scheduled to be present on May 10, 1995, for the scheduled "walk through" inspection but failed to appear. Prior to the closing, the Packs asked First National if they, the Packs, needed an attorney at the closing. First National assured them that was unnecessary. The Packs further testified that they were advised that Hal Roberts, a bank officer, would be present at the closing and that funds would be withheld from Floridian Homes insuring that the defects in the construction would be corrected.
When the Packs arrived at First National's branch office for the closing, they learned that a Mr. Bollinger, another bank officer, had overridden Roberts' agreement to withhold the funds and that the final draw check on the construction loan was made out jointly to the Packs and Floridian Homes. First National assured the Packs that the owner of Floridian Homes, Mr. Lawless, was a person worthy of trust and that First National would obtain an affidavit from Lawless assuring that Floridian Homes would fix the construction defects. First National told the Packs that if they didn't close, First National was washing its hands of the whole proceedings and the Packs would have to go through the court system. Dubois told the Packs that First National could not wait until the Packs obtained an attorney and the closing proceeded.
Floridian Homes never came back to fix any of the problems that had been outlined prior to the closing. The Packs contacted First National which said it would contact Floridian Homes but no action materialized. The Packs were thereafter advised by First National that Floridian Homes was having financial difficulty. The Packs demanded that First National provide them with a copy of the affidavit that said it would have Floridian Homes sign. No such affidavit was ever produced.
The jury returned a verdict finding that First National owed...
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