NO-RISK CHEMICAL CO., INC., A CORPORATION, APPELLANT,
v.
LISA EL-KERDI, APPELLEE
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No-Risk Chemical Co. appeals a judgment for breach of warranty and negligence in a termite inspection case. The court reversed, finding no competent evidence that termites were actively infesting the property at the time of inspection, and noting that the buyer purchased the property 'as is' with knowledge of prior termite treatment.
The trial court erred in entering judgment for El-Kerdi because the record lacks competent, substantial evidence that the property was infested with termites on the date of the inspection report. Additionally, El-Kerdi may not complain about damage from the previous infestation because she purchased the property 'as is' with knowledge of the prior infestation at closing.
[1] A judgment for a plaintiff must be supported by competent, substantial evidence in the record.
[2] A buyer who purchases property "as is" and is informed of prior damage at closing may not complain about damage from that previous infestation.
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Join FLexlaw to unlock all legal intelligence“Upon the understanding that all machinery, equipment, and appliances will be in working order at closing, the property covered by the agreement is acceptable to the buyer in its condition as of the date of this offer.”
The offer clause establishing that the buyer accepted the property in its existing condition as of the date of the offer
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Join FLexlaw to unlock all legal intelligenceLisa El-Kerdi made an offer to purchase real property on September 25, 1977, with a clause stating the property was acceptable in its condition as of …
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RYDER, Chief Judge.
On September 25, 1977, appellee, Lisa El-Kerdi, offered to buy a piece of real property owned by Duke and Grace Dur-fee. The written offer contained the following clause, which provided, inter alia, “Upon the understanding that all machinery, equipment, and appliances will be in working order at closing, the property covered by the agreement is acceptable to the buyer in its condition as of the date of this offer.” Handwritten in the form contract was the following sentence, “Seller to submit termite inspection report.” Mr. and Mrs. Durfee accepted the offer on October 12, 1977, the same day on which appellant, No-Risk Chemical Co., Inc. (No-Risk) submitted a termite inspection report stating that a visual inspection of the property evidenced no termite infestation but that the report was based on a visual inspection only and was not to be construed as a guarantee against termites.
At closing, El-Kerdi received a copy of the termite inspection report and became aware that the house had previously been treated for termites when she received a copy of a subterranean termite contract between No-Risk and the Durfees. Approximately two weeks later, El-Kerdi discovered a termite on the property and contacted No-Risk who treated the house free of charge several times over the next four years until El-Kerdi stopped seeing termites. El-Kerdi sued No-Risk for breach of warranty and negligence in conducting its termite inspection. At trial, No-Risk’s inspector testified that he was familiar with the prior termite problems in the house on his October 12, 1977 inspection and searched the structure for signs of active infestation, but found none. Although there was obvious termite damage to the house after closing, no witness testified that the house was infested with termites on October 12, 1977 when No-Risk made its report. Even the HRS entomologist who inspected the house three months after closing was unable to state that a visible infestation was present on October 12, 1977.
We hold, therefore, that the trial court erred in entering a judgment for El-Kerdi because the record lacks competent, substantial evidence to support the judgment. Holland v. Gross, 89 So. 2d 255 (Fla. 1956); Richards v. Dodge, 150 So. 2d 477 (Fla. 2d DCA 1963). Furthermore, El-Ker-di may not complain about damage from the previous infestation because she purchased the property “as is” and was informed of the previous infestation at closing.
Accordingly, the judgment entered by the trial court is REVERSED and set aside, and the cause REMANDED with instructions that judgment be entered in favor of No-Risk.
DANAHY and CAMPBELL, JJ., concur.
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Wasser v. Sasoni, 652 So. 2d 411 (Fla. 3d DCA 1995)…ee Cassara v. Bowman, 136 Fla. 302, 186 So. 514 (1939); Ortiz v. Orchid Springs Dev. Corp., 504 So. 2d 510 (Fla. 2d DCA 1987); Weiss v. Cherry, 477 So. 2d 12 (Fla. 3d DCA 1985), review denied, 488 So. 2d 69 (Fla.1986); No-Risk Chem. Co. v. El-Kerdi, 453 So. 2d 482 (Fla. 2d DCA 1984); Coble v. Lekanidis, 372 So. 2d 506 (Fla. 1st DCA 1979). In conclusion, a sophisticated purchaser of commercial property who agreed to an “as is” purchase contract, had ample opportunity to conduct inspections, and could have dis…
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Rayner v. Wise Realty Co. OF Tallahassee, 504 So. 2d 1361 (Fla. 1st DCA 1987)…and rule, the harm which occurred was the type which the statute and rule sought to prevent, and the breach of duty imposed by the statute and rule was the proximate cause of their damages. Noegel’s reliance on No-Risk Chemical Company v. El-Kerdi, 453 So. 2d 482 (Fla. 2d DCA 1984), is misplaced. There, the court held that the purchaser of a house could not recover against No-Risk for breach of warranty or negligence in conducting a preclosing inspection where the termite inspector testified there was no sig…
Authorities Cited
- Bernardo de la Pena v. SC Mota Assocs. Ltd. P'ship (Fla. 3d DCA 2024)
- Holland v. Gross, 89 So. 2d 255 (Fla. 1956)
- Richards v. Dodge, 150 So. 2d 477 (Fla. 2d DCA 1963)