Turner v. Fitzsimmons

• Decision Date: 07 May 1996
• Docket Number: No. 95-391,95-391
• Citation: 673 So. 2d 532
• Parties: 21 Fla. L. Weekly D1115 Clinton E. TURNER, Appellant, v. S.G. FITZSIMMONS, IV, and David Michaels, Appellees.
• Court: Florida District Court of Appeals

Page 532

673 So.2d 532

21 Fla. L. Weekly D1115

Clinton E. TURNER, Appellant, v.S.G. FITZSIMMONS, IV, and David Michaels, Appellees.

No. 95-391.

District Court of Appeal of Florida First District.

May 7, 1996.

Rehearing Denied June 4, 1996.

An appeal from the Circuit Court for Bay County; Dedee Costello, Judge.

Dana C. Matthews, P.A., Destin, for Appellant.

Cecilia D. Redding of Bryant and Higby, Panama City, for Appellees.

VAN NORTWICK, Judge.

Clinton E. Turner, who purchased a Panama City Beach motel from appellee S.G. "Bo" Fitzsimmons, IV, appeals a final judgment awarding him compensatory damages in his action based upon alleged misrepresentations made by Fitzsimmons and appelleeDavid Michaels in connection with the motel sale.Turner contends on appeal that the trial court should have granted him rescission of the sales contract.Alternatively, he argues that, in the event rescission was not appropriate, the trial court should have allowed his claim for punitive damages to go to the jury.Finally, he contends the trial court should not have permitted Michaels to recover $2,209.90 against him on the equitable theory of unjust enrichment.For the reasons that follow, we affirm the trial court's denial of rescission and refusal to submit the claim of punitive damages to the jury, but reverse the award of damages to Michaels on a claim of unjust enrichment.

Factual Background and Procedural History

In May 1991, Turner purchased the Sportsman's Motel on Panama City Beach from Fitzsimmons for a price of $230,000.Michaels acted as the agent for the sale.Turner paid the purchase price in part in cash, in part by the delivery of a promissory note secured by a mortgage on the motel, and in part by the conveyance to Fitzsimmons of a beach house with a stipulated value of $80,000.Fitzsimmons and Michaels then agreed that Michaels would buy the beach house from Fitzsimmons for $62,000, with the $18,000 difference between Fitzsimmons' purchase price and the sale price to Michaels constituting Michaels' commission on the sale of the motel.When Turner conveyed the beach house to Fitzsimmons in May 1991, the name of the grantee on the warranty deed was left blank and the deed was delivered to Michaels.However, Michaels did not promptly record the warranty deed.In August 1991, the Internal Revenue Service (IRS) placed a tax lien against the beach house for unpaid taxes allegedly owed by Turner.Michaels recorded his deed in September 1991.In October 1991, he sought to sell the beach house, but was required to clear the title of the tax lien.He approached Turner about the IRS lien, and Turner claimed that he did not have any tax liability to the IRS.Nevertheless, Michaels satisfied the lien to facilitate transfer of the property.He then filed suit in county court seeking return of the amount of money he paid IRS plus court costs for a total amount of $2,209.90.

The litigation below was initiated when Fitzsimmons filed a foreclosure suit on the note and mortgage given to him by Turner as part of the purchase price for the motel.Turner counterclaimed for rescission and damages.The damages claim, which was against Turner and Michaels, was based upon theories of negligent misrepresentation and fraud.Michaels' county court action was consolidated with this circuit court action.

Without detailing the considerable evidence presented, at the trial Turner contended that Fitzsimmons and Michaels misrepresented and failed to disclose material facts about the income, expenses and physical condition of the motel, and that he relied on these misrepresentations in entering into the contract for purchase of the motel.Turner said that had he known of the true state of affairs of the motel, he never would have purchased it.

Before the jury retired to deliberate, Turner moved to conform the pleadings to the evidence and allow the jury to decide the issue of punitive damages.Specifically, Turner argued that the evidence showed appellees had intentionally concealed the financial records which would have revealed the "proper worth" of the motel, and, thus, punitive damages were appropriate.Appellees objected, noting that Turner had filed no pleading requesting punitive damages and arguing that the motion was untimely and that appellees had not been given sufficient notice that the issue of punitive damages would be injected into this proceeding.

The trial court ruled that it would not address the timeliness issue, but, rather, would reach the merits of the punitive damages question.The trial judge said: "I don't think that the behavior alleged here, even if the jury believes everything that the Plaintiffs are alleging, rises to the level that the jury should be able to consider punitive damages."

Thereafter, the jury was instructed on misrepresentation.Though there were comments in the instructions relating to fraudulent misrepresentation, the overall tenor of the instructions was to advise the jury of the elements of negligent misrepresentation.The special verdict interrogatories, which were submitted to the jury without objection, did not ask the jury to find the elements of fraud and instead related solely to issues of negligent misrepresentation.¹The jury returned a special verdict awarding damages in the amount of $23,000.

While the jury was deliberating, the court took testimony on the foreclosure claim, the rescission claim and Michaels' claim for restitution.The court agreed that foreclosure was appropriate and ruled that Michaels should be reimbursed the amount of money which he claimed, $2,209.90.The trial court reserved ruling on rescission to give Turner the opportunity to present evidence on the present value of the motel.When the value evidence was not submitted, the trial court denied rescission and entered final judgment against Fitzsimmons and Michaels for damages in the amount of $23,000, which was offset by the $2,209.90 in damages awarded to Michaels.

Rescission Claim

In his first point, Turner contends that he should have been awarded rescission of the contract because he presented evidence of fraud and misrepresentation.As this court has ruled, however,

a condition precedent to the granting of the remedy of rescission is that the other party be returned to his status quo.Generally, a contract will not be rescinded even for fraud when it is not possible for the opposing party to be put back into his pre-agreement status quo condition.

Royal v. Parado, 462 So.2d 849, 856(Fla. 1st DCA1985).In this instance, Turner presented no evidence that he could return the motel to Fitzsimmons in the same or substantially the same condition as when he took possession.

Further, while we recognize that, where restoration to the status quo is impossible, a court may still grant rescission provided the equities between the parties can be balanced, Braman Dodge, Inc. v. Smith, 515 So.2d 1053, 1054(Fla. 3d DCA1987), Turner failed to present evidence on which the trial court could have balanced the equities.Below, despite several statements from the trial judge that she would require evidence of the value of the motel to grant rescission as a remedy, Turner submitted no evidence of the present value of the motel.Without the present value evidence, the trial court was unable to calculate any amount of money that might be necessary to balance the equities while granting rescission.Thus, we affirm the trial court's denial of...