Zuckerman-Vernon Corp. v. Rosen
| Decision Date | 09 August 1978 |
| Docket Number | No. 76-1559,ZUCKERMAN-VERNON,76-1559 |
| Citation | 361 So.2d 804 |
| Court | Florida District Court of Appeals |
| Parties | CORP., Appellant, v. Harry M. ROSEN, as Mayor of the City of Miramar, a Municipal Corporation, Richard Calhoun, Jerome F. Pollock, Emil Morton as Trustee, Lottie Morton, Lawrence Morton as Trustee, Irma Morton; James Pace, Dixie Williams and City of Miramar, Appellees. |
Joseph Teichman, Miami, for appellant.
Nancy Little Hoffmann of Druck, Grimmett, Norman, Weaver & Scherer, Fort Lauderdale, and Joe Easthope of Ferrero, Middlebrooks & Houston, Fort Lauderdale, for appellees Harry M. Rosen, Jerome F. Pollock, Richard Calhoun, and City of Miramar.
Marion E. Sibley of Sibley, Giblin, Levenson & Ward, Miami Beach, for appellees Emil Morton as Trustee, Lottie Morton, Lawrence Morton as Trustee, and Irma Morton.
This litigation is here for a decision on the propriety of the trial court's dismissal of the complaint with prejudice.
The appellant entered into a contract 1 to purchase acreage from appellee. Some two years after the closing the mortgage was foreclosed and the sellers took back the property less some six acres and kept the deposit which had been paid to them.
The appellant filed a four-count complaint naming as defendants the sellers, the brokers, both the present and former mayor of the City of Miramar, the City itself and the former city attorney individually.
The basic thrust of the complaint was to the effect that appellant was induced to close the contract by the fraudulent and deceitful misrepresentation that the acreage was properly zoned PUD. The allegations continue that because of the deliberate misrepresentations of the various appellees, the appellant was distracted and diverted from making further inquiry about the zoning.
Count One of the complaint was pled in tort and is an action for fraud and deceit. Counts Two, Three and Four sought restitution against the various defendants on a theory of unjust enrichment.
As it developed the PUD plan was not approved by the city and the appellant lost an anticipated profit, incidental damages on expenses and brokerage fees and deposits.
In considering the complaint against a motion to dismiss, the trial court is not required to speculate as to what the true facts might be or what facts might ultimately be established at trial. Because it is the function of a motion to dismiss to raise a question of law as to the sufficiency of the facts alleged to state a cause of action and because the court is not permitted to go beyond the four corners of the complaint in testing its legal sufficiency, the issue of sufficiency of the evidence which the plaintiff may be able to produce at a hearing on the merits, is not material to the threshold decision on a motion to dismiss. Nantell v. Lim-Wick Construction Company, 228 So.2d 634 (Fla. 4th DCA 1969); Reed v. Sampson, 349 So.2d 684 (Fla. 4th DCA 1977).
In Count One it is alleged that the sellers and brokers made representations that the Miramar City Council had approved the PUD zoning of the property and that the 1971 "Sedel" PUD plan which allowed a density of 30 units per acre was likewise approved by the City of Miramar with no further approval of the City Council being necessary. The fact of the matter was that neither the '68 nor the '71 zoning plans had been approved by the city, which in turn did not approve the building permit or plat plan desired by the plaintiff.
As drawn, this complaint states a cause of action for the intentional tort of fraud and deceit as to the sellers and brokers. American International Land Corporation v. Hanna, 323 So.2d 567 (Fla.1975); Nantell v. Lim-Wick Construction Company, supra.
The real estate purchase agreement provided that the closing of the transaction was subject to verification by the purchaser and that the purchaser would have until October 16th, 1972 to make its own investigation to verify statements of fact set forth in paragraph 13(a) through (f) of the contract. The contract then provided:
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