Fry v. J.E. Jones Const. Co., 89-2401
| Decision Date | 23 August 1990 |
| Docket Number | No. 89-2401,89-2401 |
| Citation | 567 So.2d 901 |
| Parties | 15 Fla. L. Weekly D2134 Thomas J. FRY and Joanne Q. Fry, his wife, Appellants, v. J.E. JONES CONSTRUCTION COMPANY, etc., Appellee. |
| Court | Florida District Court of Appeals |
William N. Asma of Asma & Wright, Winter Garden, for appellants.
Kenneth R. Marchman of Hunter, Patillo, Marchman, Sanders & Bethea, P.A., Winter Park, for appellee.
Thomas and Joanne Fry appeal a judgment denying their request for rescission of a contract to purchase a parcel of real estate and denying their claim for an equitable lien upon the parcel for the amount of their deposit. We reverse the judgment.
On October 21, 1987, the Frys entered into an agreement with, and paid a deposit of $10,292 to, J.E. Jones Construction Company doing business as the Jones Company for sale and purchase of the parcel. The parcel is described as lot 7, phase I, of the subdivision known as The Manors at Butler Bay, according to the plat thereof recorded in plat book 19 at pages 90 and 91 of the public records of Orange County, Florida.
Prior to entering the contract, the Frys had heard from a friend that lakefront lots were available in the subdivision. The Frys visited The Manors, and Mr. Fry observed a large, glassed display of the subdivision in the sales office. Observing that eight or nine lots appeared to be on Lake Crescent, Mr. Fry asked Sandra Scott, the sales agent for the Jones Company, whether any of the lots bordering the lake were lakefront lots. Mr. Fry explained to Scott that he and his wife wanted a home on a lake because they were both avid water skiers. Testimony at trial indicated Sandra Scott replied that, indeed, there were lakefront lots, but they supported a $20,000 premium over other lots in the subdivision. Brochures of home models were supplied to the now seriously interested Frys, as well as a site plan of the subdivision, a copy of which is shown in appendix "A" to this opinion.
The site plan was essentially the same as the glassed display first seen in the sales office. Mr. Fry observed that lines drawn on the site plan separated the lakefront lots from the water, and he asked Scott about them. According to Mr. Fry, Scott replied that the lines demarcated the area in which the seller would install sod. Scott further assured him that ownership of their chosen lot 7 would extend to the lake's edge, but landscaping by the owners to the water's edge was not permissible because it would pollute the lake. Satisfied with the explanation, the Frys signed the contract for purchase of the lot and construction of a home for a purchase price of $199,484.
The Frys later discovered they would not own the land to the water's edge. The subdivision plat indicates lot 7 ends some 100 feet from the water's edge and that the area between the lot and the lake is a conservation tract. It also appeared that the Frys would not be able to secure a boat dock permit. They expressed their concerns orally to the seller and in a letter formalized a demand for refund of their deposit. The basis for their demand was that Scott had informed them incorrectly that lot 7 was a waterfront lot and that a boat dock could be built to the water's edge. There was no indication in the record that the seller ever responded to the letter.
On June 21, 1988, the Frys sued the seller for rescission based upon fraudulent misrepresentation and for an equitable lien in the amount of the deposit. In the final judgment, the court made a finding of fact that "Defendant, through its sales person, did refer to the lot as a lakefront lot to the Plaintiffs prior to purchase." This did not deter the court from further finding that, "in light of other evidence and representations surrounding the transaction, this was not a material representation."
We must determine whether the trial court erred in denying the rescission after finding specifically that, prior to execution of the agreement for sale and purchase, the Jones Company represented the lot to be a waterfront lot and finding that it was not a material misrepresentation. The elements of a fraudulent misrepresentation were set forth in Johnson v. Davis, 480 So.2d 625 (Fla.1985):
1. A false...
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