FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
appeal from the Circuit Court for Alachua County. Toby S.
A. Boyle, Molly Chafe Brockmeyer, and Alexander L. Brockmeyer
of Boyle & Leonard, P.A., Fort Myers, for Appellant
Arlington Pebble Creek, LLC.
Klein and Brian Lee Ellison of Conroy Simberg, Hollywood;
Jeffrey M. Paskert and Dara L. Dawson of Mills Paskert
Divers, P.A., Tampa, for Appellant Arlington Properties, Inc.
Jefferson M. Braswell of Scruggs & Carmichael, P.A.,
Gainesville, for Appellee.
Arlington Properties, Inc., and Arlington Pebble Creek, LLC,
appeal the final judgment in favor of Campus Edge Condominium
Association, entered after denial of Appellants' motions
for directed verdict and based upon the jury's verdict
and award of damages. "A directed verdict is proper when
the evidence and all inferences from the evidence, considered
in the light most favorable to the non-moving party, support
the movant's case as a matter of law and there is no
evidence to rebut it." Wald v. Grainger, 64
So.3d 1201, 1205 (Fla. 2011). An appellate court reviews an
order on a motion for directed verdict de novo. Kopel v.
Kopel, __ So.3d __, 42 Fla.L.Weekly S26, 2017 WL 372074
(Fla. Jan. 26, 2017); Christensen v. Bowen, 140
So.3d 498 (Fla. 2014); Hoffmann-LaRoche Inc. v.
Mason, 27 So.3d 75 (Fla. 1st DCA 2009). Here, the
evidence and inferences from the evidence do not establish
proof of all the elements of fraudulent misrepresentation or
negligent misrepresentation, even when viewed in a light most
favorable to the Association. Therefore, the final judgment
is reversed and the trial court is directed to enter judgment
in favor of the Appellants.
Properties, Inc., purchased an existing apartment complex in
January 2006, for the purpose of converting the facilities to
condominium ownership under chapter 718, Florida Statutes.
Upon this purchase, Arlington Pebble Creek, LLC, was created
to conduct the conversion, including creation and initial
management of the Association. See § 718.111,
Fla. Stat. In December 2008, Arlington Pebble Creek
relinquished management and control of the Association to the
unit owners. See § 718.301, Fla. Stat.
original complaint was filed by the Association on January 6,
2012, after extensive water intrusion damage to common areas
of the condominium property was discovered. Necessary repairs
to the common areas required the Association to increase, and
for some years double or more, the assessments upon its
members in order to preserve the utility and value of both
the common areas and the individual condominium units. The
Association sought damages from both Arlington Properties and
Arlington Pebble Creek, asserting that the developer and the
managing company knew of the water intrusion problems but
neglected to fully cure the situation, turned over to the
Association responsibility for upkeep and repairs knowing
that damage to the buildings was ongoing, and knew the
Association would incur substantial expense to preserve the
integrity and safety of the common areas. Based on the
factual allegations in its Fourth Amended Complaint, and
after clarification by counsel and the trial court as the
litigation progressed, the Association proceeded on causes of
action for fraudulent misrepresentation and negligent
Florida Supreme Court has stated, a party seeking to
establish fraudulent misrepresentation is required to prove
the following elements:
(1) a false statement concerning a material fact; (2) the
representor's knowledge that the representation is false;
(3) an intention that the representation induce another to
act on it; and (4) consequent injury by the party acting in
reliance on the representation.
Butler v. Yusem, 44 So.3d 102, 105 (Fla. 2010)
(quoting Johnson v. Davis, 480 So.2d 625, 627 (Fla.
1985)). To establish negligent misrepresentation, a party is
required to prove: (1) a misrepresentation of material fact
that the defendant believed to be true but which was in fact
false; (2) that defendant should have known the
representation was false; (3) the defendant intended to
induce the plaintiff to rely on the misrepresentation; and
(4) the plaintiff acted in justifiable reliance upon the
misrepresentation, resulting in injury. See Specialty
Marine & Industrial Supplies, Inc. v. Venus, 66
So.3d 306, 309 (Fla. 1st DCA 2011).
first elements of both causes of action require false
statements of material fact. The Association admitted into
evidence Arlington Properties' Facility Evaluation Report
from December 2005. This report was prepared as required by
section 718.616, Florida Statutes, when converting an
apartment complex to a residential condominium. The report
stated an estimated remaining useful life of the structures
of 35 to 45 years and described the functional soundness of
the structures as "Good (localized deterioration)."
In addition, the Association presented Arlington Pebble
Creek's budget for Association maintenance for 2008 (the
year immediately prior to turnover of Association
management), showing less than $10, 000 expended for building
prove the falsity of the Facility Evaluation Report and the
maintenance budget, and to prove the defendants'
knowledge of such falsity (for the fraudulent
misrepresentation count) or that they should have known of
the falsity (for the negligent misrepresentation count), the
Association admitted into evidence a second engineering
report, the Property Condition Assessment. Arlington
Properties had obtained the Property Condition Assessment
around the time of the Facility Evaluation Report in December
2005 as it prepared to purchase the then apartment complex.
The Property Condition Assessment was not filed with the
State of Florida or otherwise published to third parties. It
described moisture intrusion affecting the exterior balconies
including columns, handrails, concrete decks, and balcony
ceilings. The Property Condition Assessment included the
engineers' estimate that at the time of that report water
damage to the buildings required repairs to the
"Structure/Building envelope" costing ...