THOMAS JONES RUBEL AND FLORENCE ADAMS RUBEL, APPELLANTS,
v.
WILLIAM H. MCCULLAGH, SR., AUDREY MCCULLAGH, AND MCCALL SERVICE, INC., APPELLEES
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The Rubels appealed a jury verdict finding against them in their fraud and negligence action against the McCullaghs and McCall Service regarding nondisclosure of termite damage in a real estate transaction. The appellate court affirmed the verdict, finding it manifestly supported by the evidence and rejecting the Rubels' arguments regarding jury instructions and exclusion of evidence about a required pest control inspection form.
The jury verdict was manifestly supported by the evidence and affirmed. The trial court's exclusion of Form 1145 and related questioning was harmless error because the Rubels failed to preserve the issue for appeal and, under the trial facts, the form's absence could not have affected the outcome since the Rubels were already informed of termite damage and had secured a contractor before closing.
[1] A jury verdict will be affirmed on appeal if it is manifestly in accord with the evidence.
[2] Appellate review of jury instructions is precluded if the points raised on appeal were not preserved in the trial court.
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Establishes the standard of review and the court's finding that the jury verdict was adequately supported by trial evidence.
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Join FLexlaw to unlock all legal intelligenceThe Rubels purchased real property from the McCullaghs and hired McCall Service to conduct a termite inspection. The Rubels alleged the McCullaghs fra…
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SMITH, Chief Judge.
The jury returned a verdict against the Rubels in their action against the McCul-laghs for fraudulent nondisclosure of termites and termite damage in a real estate conveyance, and in their action against McCall’s for negligent failure to tell them of extensive structural damage due to termites. After a thorough review of the record on appeal, we find that the verdict was manifestly in accord with the evidence.
The Rubels’ points on appeal primarily concern allegedly erroneous jury instructions. We do not reach the correctness of the instructions because the points raised on appeal were not preserved. Young v. Phillips Petroleum Co., 333 So. 2d 87 (Fla. 1st DCA 1976).
Next, the Rubels urge that the trial court erred in ruling, during the Rubels’ attorney’s cross-examination of McCalls key witness, that the provisions of form 1145, required by section 482.226(1), Florida Statutes, and rule 10D-55.142, Florida Administrative Code, were irrelevant and immaterial. McCalls’ witness testified that this form contains a disclaimer by the pest control company providing the termite inspection that it — the pest control company — is not a building contractor, and advising the person regulating the inspection to consult with a licensed contractor. The Rubels postulate that their cause of action against McCalls would have been enhanced by showing that had form 1145 been furnished they would have been on notice to investigate the termite damage to the structure.
However, the Rubels failed to facilitate appellate review by making clear to the trial court the purpose of this line of questioning, or by proffering form 1145 into evidence.
Moreover, under the facts adduced at trial, McCall’s failure to provide this form could not have affected the outcome of this case, and any error of the trial court in restricting inquiry on this issue was harmless. Even if the jury disbelieved the evidence that McCalls furnished a comprehensive written report, which pointed out where repairs were necessary, it was established beyond question that the Ru-bels had been informed of the termite damage to the house and had already secured the services of a qualified building contractor prior to closing.
AFFIRMED.
WENTWORTH and JOANOS, JJ., concur.
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