Nagashima v. Busck, 88-0092

• Decision Date: 19 April 1989
• Docket Number: No. 88-0092,88-0092
• Parties: 14 Fla. L. Weekly 982 Hisashi NAGASHIMA, Appellant, v. Kelly Hunter BUSCK, Appellee.
• Court: Florida District Court of Appeals

Page 783

541 So.2d 783

14 Fla. L. Weekly 982

Hisashi NAGASHIMA, Appellant, v. Kelly Hunter BUSCK, Appellee.

No. 88-0092.

District Court of Appeal of Florida,

Fourth District.

April 19, 1989.

John D. Krause, Fort Lauderdale, for appellant.

Gary J. Olsen of Morgan, Olsen & Olsen, Fort Lauderdale, for appellee.

RIVKIND, LEONARD, Associate Judge.

The trial court denied appellant an opportunity to amend his multiple count complaint and dismissed it with prejudice.

Appellant/buyer is appealing the dismissal of count III for fraud and count IV for reformation of the terms of a consummated contract of purchase and sale of a multi-family building. ¹

It appears from the record that the trial judge dismissed the fraud count on the ground that the alleged fraud was based upon a material misrepresentation of law instead of fact and, therefore, was not actionable. The reformation count was dismissed because the underlying cause of action for fraud was dismissed.

Appellee/seller sold appellant a multi-family building which consisted of three rental units. The seller had clearly marked each unit with a separate number. The sales contract represented that the building was a "free standing three unit building," and the seller allegedly made oral representations, relied upon by the buyer, that the property complied with all municipal ordinances.

The building, in fact, was zoned for a duplex, not a triplex, and the buyer has since been required to modify the structure to comply with applicable zoning laws. The buyer complains that the costs of modification and resulting diminution in value were directly attributable to the knowing deceit of the seller and constitutes actionable fraud.

It has long been the law in Florida that misrepresentations of law or matters of law such as zoning representations cannot form the basis for a tort action in fraud. Marks v. Fields, 160 Fla. 789, 36 So.2d 612 (1948). We acknowledged this rule in Nantell v. Lim-Wick Construction Co., 228 So.2d 634 (Fla. 4th DCA 1969), and clearly held that misrepresentations of fact were actionable while those of law generally were not. ²

The modern trend in the law seems to be moving away from the rigid fact/law distinction enunciated in Marks and Nantell. RESTATEMENT (SECOND) OF TORTS § 525 (1979), permits recovery for fraud where one makes a misrepresentation of law for the purpose of inducing another to act and the other's action in reliance causes pecuniary loss. Comment (b) to section 525 defines "misrepresentation" as not only words spoken or written, but any other conduct which amounts to an assertion not in accordance with the truth. RESTATEMENT (SECOND) OF TORTS § 545, permits recovery if the misrepresentation as to a matter of law includes an express or implied misrepresentation of fact.

The modern view expressed by the RESTATEMENT, which is in...