Thor Bear, Inc. v. Crocker Mizner Park, Inc.

Decision Date16 November 1994
Docket NumberNo. 93-3405,93-3405
Citation648 So.2d 168
Parties19 Fla. L. Weekly D2397 THOR BEAR, INC., Appellant, v. CROCKER MIZNER PARK, INC., a Florida corporation, as a general partner of Crocker Mizner Park I, Ltd., a Florida limited partnership, as general partner of Crocker Downtown Development Associates, a Florida general partnership, and the City of Boca Raton, Appellees.
CourtFlorida District Court of Appeals

Charles Wender of Smith, Smith & Wender, P.A., Boca Raton, for appellant.

William M. Vazquez of Greenberg & Vazquez, Boca Raton, for appellees.


This is an appeal from the trial court's order which granted appellee's motion for judgment in accordance with prior motions for directed verdict (i.e., "belated directed verdict") and entered final judgment in favor of appellee, vacating the jury's verdict in favor of appellant. We reverse and remand for the trial court to rule upon appellee's motion for new trial.

There are two issues on appeal: (1) Whether the record, viewed in a light most favorable to appellant, supported the jury's verdict in favor of appellant on its claim of fraud and misrepresentation. We conclude that it did. (2) Whether the trial court should be permitted on remand to rule on appellee's alternative motion for a new trial. We conclude that it should.

In early July of 1991, appellant entered into a written lease with appellee for space in the Mizner Park shopping complex in Boca Raton for the purpose of operating a retail movie video store. The ten year lease was to commence in October 1991, but appellant was to commence construction and improvements on the empty space prior to then. Appellant placed a $75,000 rent security deposit with appellee and spent about $160,000 in leasehold improvements. The store was completed and opened for business in mid November, 1991.

Appellant's store unexpectedly did not do well during its first month of operation, despite the holiday season, advertising and promotions run by appellant. By the end of December, the store had failed and was closed. Appellant's vice president, Mark Votypka, testified that the store's failure was due to inadequate parking facilities which created traffic jams and thereby discouraged and prevented customers from coming in; that appellant had spent $40,000 on advertising--which was thrown away because the effect of such advertising efforts only lasts for a finite time; that he did not foresee the parking problem getting better so as to remedy the problem; and that rather than "pouring good money after bad," appellant chose to close down.

Appellant had negotiated the lease with Teresa Hall, who was then appellee's vice-president of leasing, over a period of several months during the spring of 1991. Mr. Votypka testified that he explained to Ms. Hall on numerous occasions that the nature of the store as a video rental shop required quick ingress and egress and ample parking. Mr. Votypka testified that "[Ms. Hall] said that's no problem, Mizner Park has all that. We can accommodate you." Mr. Votypka also testified that Ms. Hall told him that more paved parking would be built on a grassy area nearby the store when the leasing trailer was removed from that area sometime that summer.

Mr. Votypka testified that he had observed Mizner Park on several occasions during the negotiation period, but did not observe any problems with traffic and parking; that as time went on, he began to worry about appellee's claim that it would be building more parking that summer because this did not happen; that he was told these plans had been delayed; and that around the end of September, he became concerned that there were too many cars for the number of spaces. 1 Around this time, Ms. Hall was replaced. Mr. Votypka testified that he was told by the new on-site property manager that there were never any plans to build more parking in the area near appellant's store. After the store closed, he was told by Richard Ackerman, vice-president of Crocker & Co., that although appellee was planning to put in additional parking on the other end of the shopping complex, it was not planning on putting parking in appellant's area. In short, Ms. Hall had been wrong.

The Executive Director of the Boca Raton Community Redevelopment Agency, Jorge Camejo, testified that since the opening of Mizner Park in December of 1990, there had been a parking problem in that the demand for parking exceeded availability; and that the parking problem was covered in the newspapers. Mr. Camejo himself observed some parking difficulties when he visited Mizner Park soon after it opened. He indicated that around March of 1991, he discussed this situation with "Ackerman or someone on behalf of Crocker & Co." Furthermore, since this was to be the first true season at Mizner Park, the demand was expected to be greater than that of the prior season. Due to complaints from tenants and patrons regarding parking difficulties, a parking committee was formed and determined that a study was warranted.

Finally, Mr. Ackerman testified that his company knew of the parking problems prior to the time that appellant entered into his lease with appellee:

Q: ... I asked when did you become first aware of a parking problem in Mizner Park?

A: I think sometime into the first season that the project was going to be very successful. We didn't realize until all the stores started to open.

Q: And that would be in the beginning of 1991, correct?

A: That would be before we actually leased the space to Mark [Votypka/appellant].

Furthermore, in response to whether he was aware of public outcry or criticism regarding the parking problem at Mizner Park during the first year, Mr. Ackerman responded that there were newspaper articles written about the project and that at certain times during the day it was difficult to park at Mizner Park.

Claiming about $400,000 in losses, two of appellant's counts went to the jury, which returned a verdict in favor of appellee on the count of constructive eviction, but returned a verdict in favor of appellant on the count of fraud and misrepresentation in the inducement of the contract. It awarded appellant $35,000 in damages. Subsequently, the trial court granted appellee's motion for judgment in accordance with prior motions for directed verdict, stating: "The only evidence Plaintiff [appellant] presented at trial was that Crocker [appellee] made statements of opinion about a future state of affairs, and presented no evidence that Crocker [appellee] had a positive intention not to perform at the time the statement of opinion was made. That is not actionable fraud. Taking all of the evidence in the light most favorable to the Plaintiff [appellant] and drawing all reasonable inferences therefrom, there was no evidence that justified this matter being presented to the jury." (citations omitted). Accordingly, the trial court vacated the jury verdict on the fraud count and pronounced final judgment in favor of appellee on both counts.


In considering a motion for a directed verdict, the trial court is required to view the evidence in the light most favorable to the nonmoving party and draw all reasonable conclusions and inferences favorable to the nonmoving party. Levine v. Frank, 311 So.2d 708 (Fla. 3d DCA 1975), cert. denied, 327 So.2d 33 (Fla.1976). A directed verdict should not be granted unless no view of the evidence could support a verdict for the nonmoving party. Tesher & Tesher, P.A. v. Rothfield, 387 So.2d 499 (Fla. 4th DCA 1980). The same standards apply to a post-verdict motion for judgment in accordance with prior motions for directed verdict and to the appellate court's review of such directed verdicts. McDonald v. McGowan, 402 So.2d 1197 (Fla. 5th DCA), rev. dismissed, 411 So.2d 380 (Fla.1981); Whitman v. Red Top Sedan Service, Inc., 218 So.2d 213 (Fla. 3d DCA), cert. denied, 225 So.2d 537 (Fla.1969).

The elements necessary to establish a cause of action for fraudulent misrepresentation are: (1) a false statement or misrepresentation of a material fact; (2) the representor's knowledge at the time the misrepresentation is made that such statement is false; (3) such misrepresentation was intended to induce another to act in reliance thereon; (4) action in justifiable reliance on the representation; and (5) resulting damage or injury to the party so acting. Johnson v. Davis, 480 So.2d 625, 627 (Fla.1985); Eastern Cement v. Halliburton Co., 600 So.2d 469, 470-71 (Fla. 4th DCA), rev. denied, 613 So.2d 4 (Fla.1992); Hamlen v. Fairchild Indus., Inc., 413 So.2d 800, 801 (Fla. 1st DCA 1982); Vance v. Indian Hammock Hunt & Riding Club, Ltd., 403 So.2d 1367, 1371 n. 7 (Fla. 4th DCA 1981).

The general rule of law is that a false statement of fact must concern a past or existing fact in order to be actionable. Vance, 403 So.2d at 1371. A successful action for fraudulent misrepresentation may not ordinarily be premised upon a promise of future action. Id. However, an exception to this rule is recognized where the promise of future action is made with no intention of performing or with a positive intention not to perform. Id. We agree with appellant that viewing the evidence in a light most favorable to appellant could support the jury's verdict on either of these bases: a false statement of an existing fact or a promise of future action with no intention of performing.


A claim of fraudulent misrepresentation is not actionable if premised on a mere opinion, rather than a material fact. Chino Elec., Inc. v. United States Fidelity & Guar. Co., 578 So.2d 320 (Fla. 3d DCA 1991). Participants in a normal business transaction are not entitled to rely upon such "ephemeral matters" as opinions, judgments or legal views expressed by an opposing party. Id. at 323; see also Nagashima v. Busck, 541 So.2d 783 (Fla. 4th DCA 1989). However, where...

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