Tonkovich v. South Florida Citrus Industries, Inc.

• Decision Date: 20 April 1966
• Docket Number: No. 5697,5697
• Parties: Joseph TONKOVICH and Albina A. Tonkovich, his wife, Appellants, v. SOUTH FLORIDA CITRUS INDUSTRIES, INC., a Florida corporation, Appellee.
• Court: Florida District Court of Appeals

Page 710

185 So.2d 710

Joseph TONKOVICH and Albina A. Tonkovich, his wife, Appellants, v. SOUTH FLORIDA CITRUS INDUSTRIES, INC., a Florida corporation, Appellee.

No. 5697.

District Court of Appeal of Florida, Second District.

April 20, 1966.

Rehearing Denied May 18, 1966.

Elwood P. Safron, Punta Gorda, for appellants.

Herman T. Isis, Coral Gables, for appellee.

SHANNON, Acting Chief Judge.

This is an appeal from a summary final decree in favor of the plaintiff. The defendants, a husband and wife, who were unsuccessful on their counterclaim, are the appellants.

The appellee sued to foreclose a statutory lien for the value of labor and materials furnished to certain grove lands, owned by the appellants. An answer and counterclaim were filed by the appellants, alleging that the lands in question had been sold to them by the appellee-corporation, that the appellee had induced the sale by misrepresenting the condition of the citrus trees on the lands, that the appellants relied on the representations to their detriment, and praying for the court to rescind the sale. Upon the filing of depositions and interrogatories, the court granted the corporation's motion for a summary final decree, awarded judgment for the value of labor and materials furnished, and dismissed the defendants' counterclaim. On appeal the appellants contend that it was error to summarily dismiss the counterclaim.

From the depositions and answers to interrogatories the following facts appear. The appellants, residents of St. Louis, Missouri, answered an advertisement in a St. Louis newspaper regarding the sale of citrus lands in Florida. A representative of the appellee-corporation called upon the appellants in their home on February 10, 1962, and during that visit the parties contracted for the sale of ten acres of citrus land. The contract, which provided that a final decision would be made upon inspection by the appellants, described the property according to numbered tracts on an unrecorded plat. On July 24, 1962, the appellants came to Florida, were flown from Fort Myers by a corporation plane, driven to a grove site, and shown a parcel of land containing orange trees. It was represented to appellants by a corporation salesman that this parcel was the one described in the contract for sale. After an inspection of the grove site the purchase was consummated. About six months later a sales representative from the appellee-corporation visited the appellants in their St. Louis home and offered five additional acres of grove lands for sale, which five acres were represented to be contiguous and similar to the ten acres already purchased. This land, described in the sales contract by tract number, was purchased by the appellants on February 5, 1963. In June, 1963, the appellant, Mr. Tonkovich, during a visit to Florida, went to his grove site and discovered that the land, which he had been told was his grove, did not belong to him. He was informed that some other fifteen acre tract was the one that he had purchased. Although not altogether clear, it appears that the trees on the fifteen acres owned by the appellants are considerably smaller than those on the acreage shown to them by the appellee. Upon learning of this discrepancy, the appellants contacted a representative of the appellee and sought to have their money refunded. The record does not disclose the result of this request. Also, it appears that the appellants employed counsel and there was some correspondence exchanged between the parties.

On February 13, 1964, the appellee filed this suit, seeking a lien for various sums due under maintenance contracts on the groves sold. The appellants filed an answer and counterclaim stating that they were the victims of fraud and seeking rescission of the sale. In reply to the counterclaim the appellee denied the material allegations and set forth the legal description of the property concerned, which purported to correspond to the tract numbers on the contracts, and further alleged that the appellants had not been damaged; that the appellants were guilty of negligence; that the contracts differed materially from the allegations of the counterclaim; that the appellants waived their right to rescission; and that they had ratified the contract. The chancellor dismissed the counterclaim, and this appeal ensued.

The gist of the issue presented here is concisely stated in the appellee's brief:

'The vendees under a contract for the purchase of real property are not justified to rely upon oral statements of the seller which are contrary to statements in the contract.'

In support of this point, the appellee relies on two portions of the transactions. (1) The contracts for sale involving both the ten and five acre tracts contained this wording, '* * * _ _ acres, more or less, To be improved with seventy trees per acre.' (Emphasis added.) And (2) The contracts for sale and deeds both set forth correct legal descriptions of the lands. In light of these facts, appellee contends that there was no right to rely on the seller's oral representations that there were already trees on the land, as well as the location of the groves purportedly shown.

Whatever may be said for the legal support of this position, we find ourselves highly disinclined to favor any theory so blatantly unconscionable. Realizing, however, that a court should not decide a legal issue on the basis of a moralistic preference, we have undertaken search of the applicable law.

It is generally understood that a tort action for fraud or deceit will lie for intentional misrepresentation. The essential elements of fraud are: 1) a false statement of fact; 2) known by the defendant to be fraudulent at the time it was made; 3) made for the purpose of inducing the plaintiff to act in reliance thereon; 4) action by the plaintiff in reliance on the correctness of the representation; and 5) resulting damage to the plaintiff. Beagle v. Bagwell, Fla.App.1964, 169 So.2d 43; Prosser, Torts, Sec. 86 (2d Ed. 1955); and 2 Pomeroy, Equity Jurisprudence, Sec. 872, et seq., (1905).

What we have at issue here comes under the fourth category, that is, action in reliance on a material representation. The appellee contends the reliance was not justified.

In attempting to maintain logical consistency in legal theory, we note that contributory negligence cannot be a total defense to an action for deceit, which is an intentional tort. Prosser, supra, Sec. 89, p. 551; Vol. 1 Harper and James, Torts, Sec. 7.12 (1956); and Clark, Equity, Sec. 306 (1954). This is important because a mere showing of some slight negligence or inattention on the part of a plaintiff will not preclude a recovery in an action for deceit, as it would in a negligence action. Therefore, we must examine the conduct of the appellants to determine if, according to the record, they did rely on the appellee's misrepresentations, and if such reliance, under all the facts and circumstances, was justified. If we are unable to answer these questions adverse to the appellants as a matter of law, then the summary judgment must be reversed.

Generally, the misrepresentation, to be actionable, must be one of fact rather than of opinion, e.g., Prosser, supra, Sec. 90. We illustrate the nature of the misrepresentations here by the following excerpts from the record. The deposition of Mr. Tonkovich states, in part:

'Q. Did you discuss the provisions of this contract with Mr. Weber (seller's representative) before you signed it, Mr. Tonkovich? Did you have any discussion with Mr. Weber about this?

'A. Yes.

'Q. What did he tell you about the groves?

'A. He told me the trees on the grove was three years old, two years in the nursery and one year in the grove.

'Q. He said they were planted already?

'A. Right.

'Q. Well, now, did you read this part of the contract that says: 'Tract 45 and 46--C of the Tropical River Groves * * * consisting of ten acres more or less, to be improved with seventy trees per acre'?

'A. Yes.

'Q. What did he say about that?

'A. He said it was already improved.'

The appellants' answers to interrogatories state, in part:

'* * * On July 24, 1962 we visited the grove and were shown a planted grove which we were told by Mr. Dobias as being the same grove on which we had paid an option.

'* * * (W)e were assured by Mr. Louis Cunningham that the five acres grove was planted and the size of the trees were the same as those on the grove which we visited on July 24, 1962.

'The lands were not planted with orange trees when we purchased them as represented. Had we known the orange trees were not on these lands (and the pictures we had indicated there were orange trees) we would not have purchased any of the lands. * * *'

Thus we have clearly stated the factual misrepresentations.

Appellee relies heavily on several principles enunciated by the Florida Supreme Court, which, it is urged, stand for the proposition that where both parties have equal access to the means of verifying the representations, and when the defendant has taken no action which would preclude an independent examination by the plaintiff, that reliance by the plaintiff is unjustified. Davis v. Dunn, Fla.1952, 58 So.2d 539; Greenberg v. Berger, Fla.1950, 46 So.2d 609. Under these conditions, appellee contends that the appellants are trapped by the principles of caveat emptor.

In Davis v. Dunn, supra, the court held that the purchasers of a dwelling were not justified in relying on the seller's representations that the house had been recently inspected for termites and none found, because there was no evidence that the purchasers had been denied the right to make an inspection of the premises. The court noted that the purchaser, Davis,

'* * * testified that it was an ordinary arms-length transaction and that he was not high-pressured; that he knew it was an old house and that he had been told to be on the 'look-out' for termites; that he Visited the house three of four times...