Specialty Marine & Indus. Supplies Inc. v. Venus

• Citation: 66 So.3d 306
• Decision Date: 10 May 2011
• Docket Number: No. 1D09–6092.,1D09–6092.
• Court: Florida District Court of Appeals
• Parties: SPECIALTY MARINE & INDUSTRIAL SUPPLIES, INC., a Florida corporation, Appellant/Cross–Appellee,v.Bahram VENUS, individually; Sheila Venus, individually; Bahman Venus Living Trust, Bahman Venus and Nahid Venus as Trustees; Nahid Venus Living Trust, Bahman Venus and Nahid Venus as Trustees, Appellees/Cross–Appellants.

66 So.3d 306

SPECIALTY MARINE & INDUSTRIAL SUPPLIES, INC., a Florida corporation, Appellant/Cross–Appellee,
v.
Bahram VENUS, individually; Sheila Venus, individually; Bahman Venus Living Trust, Bahman Venus and Nahid Venus as Trustees; Nahid Venus Living Trust, Bahman Venus and Nahid Venus as Trustees, Appellees/Cross–Appellants.

No. 1D09–6092.

District Court of Appeal of Florida, First District.

Feb. 11, 2011.Rehearing Denied May 10, 2011.

[66 So.3d 307]

Michael R. Freed, Matthew T. Jackson, and Joshua R. La Bouef of Brennan, Manna & Diamond, P.L., Jacksonville, for Appellant/Cross–Appellee.Lester Makofka, Jacksonville, for Appellees/Cross–Appellants.VAN NORTWICK, J.

Specialty Marine & Industrial Supplies, Inc., appeals a judgment notwithstanding the verdict entered in favor of Bahram Venus and other defendants, appellees and cross-appellants. This judgment overturned a jury verdict that had awarded Specialty Marine damages in its negligent misrepresentation action against appellees based upon the trial court's finding that Specialty Marine “failed to justify [its] reliance” on Venus' representation. On appeal, Specialty Marine argues that the trial court erred in usurping the jury's determination that it had justifiably relied on Venus' negligent misrepresentation. In response, appellees assert that Specialty Marine failed to establish the elements of reliance and causation necessary to establish a negligent misrepresentation claim. After our review of the record, because

[66 So.3d 308]

competent and substantial evidence supports the jury's verdict, we reverse the judgment under review and reinstate the verdict. We also reverse the denial of prejudgment interest.

Bahram Venus and related Venus family trusts (jointly “Venus”) owned real property in Mayport, Florida. While Venus owned the property, a boundary-line dispute arose between Venus and a neighbor. The disputed area was a strip of land which measures approximately 176 x 18 feet at the northern portion of the property. Venus eventually sought to sell the property. Specialty Marine contacted Bahram Venus and expressed an interest in purchasing the property. At trial, the owner of Specialty Marine, James Michael Whalen, testified that, when he expressed an interest in the property, he was told by Bahram Venus that the property was 18 feet deeper than it actually was. Subsequently, Whalen was informed by an acquaintance of the boundary dispute between Venus and a neighbor. When Whalen questioned Venus as to the nature of the boundary dispute, Venus informed Whalen that the neighbor was “crazy,” that the problem was “not a big deal,” and that there was a survey supporting his position. At trial, Specialty Marine introduced evidence that, when it made a subsequent inquiry into this boundary dispute, Venus failed to correctly identify the 176 by 18 foot area of concern, and instead represented to Specialty Marine that the dispute involved a 6 to 8 foot strip of land. Further, according to Whalen, Venus never disclosed that a prior survey indicated that the property line at issue was not where Venus represented it to be.

After entering into a contract to purchase the subject property, Specialty Marine employed Tri–State Land Surveyors, Inc., a land surveyor recommended and utilized by Specialty Marine's lending institution, to conduct a survey and verify the boundary of the parcel. Whalen testified that he would not have entered into the contract to purchase the property, which led to Specialty Marine obtaining the Tri–State survey as a part of the closing, had Venus not first misrepresented the boundary of the property. Tri–State's survey erroneously showed that the boundary lines were located as represented by Venus. Specialty Marine closed the purchase of the property for a purchase price of $450,000. It later learned, however, that the actual boundary line was only six inches from the northerly side of the structure on the subject property, making the property unsuitable for its intended use. Specialty Marine filed a four-count complaint which included two claims against Tri–State for negligence and breach of contract regarding the preparation of the survey, a negligent misrepresentation claim against Bahram Venus individually, and a negligent misrepresentation claim against Bahram Venus, Sheila Venus, the Bahman Venus living trust, and the Nahid Venus living trust. Prior to trial, Specialty Marine settled with Tri–State.

At trial, the jury found that the Venus defendants engaged in negligent misrepresentation and returned a verdict in favor of Specialty Marine. The jury determined that the Venus defendants were the legal cause of 90% of Specialty Marine's damages and found that Specialty Marine incurred $400,000 in total damages. Venus filed a motion for judgment notwithstanding the verdict, ¹ arguing that Specialty

[66 So.3d 309]

Marine failed to prove both reliance and causation of damages. The trial court granted Venus' motion, ruling that the cause of Specialty Marine's damages was not negligent misrepresentation but rather breach of warranty, a cause of action not raised by Specialty Marine. Nevertheless, the trial court awarded Specialty Marine $35,000 in damages under this alternate theory of liability. The trial court denied Specialty Marine's motion for prejudgment interest on the $35,000 breach of warranty award. This appeal follows.

To state a cause of action for negligent misrepresentation, a plaintiff must show:

(1) the defendant made a misrepresentation of material fact that...