C. RICHARD BURKETT AND E. STEWART FORRESTER, APPELLANTS/CROSS-APPELLEES,
v.
BERNARD L. RICE AND MARY F. RICE, APPELLEES/CROSS-APPELLANTS
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Affirmed judgment for buyers who suffered damages from sellers' failure to disclose material facts affecting property value, but reversed and remanded on cross-appeal to award attorneys' fees and correct prejudgment interest calculation.
Sellers who fail to disclose facts materially affecting property value are liable for damages, and buyers are entitled to attorneys' fees under the sales contract provision, which is not merged into the warranty deed.
[1] Sellers' failure to disclose material facts affecting property value constitutes actionable nondisclosure under Florida law.
[2] A sales contract provision awarding attorneys' fees to the prevailing party is not merged into the warranty deed and survives closing.
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Join FLexlaw to unlock all legal intelligence“collateral agreements not usually included in terms of a deed are not affected by merger rule”
Explaining that the sales contract's attorneys' fees provision survives the warranty deed
Buyers purchased residential property from sellers who failed to reveal facts known to the sellers but not to the buyers that materially affected the …
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PER CURIAM.
In this appeal we affirm the judgment in favor of the buyers of residential property who suffered damages when the sellers failed to reveal facts, known to the sellers but not to the buyers, which materially affected the value of the property. The judgment is supported by substantial, competent evidence. Johnson v. Davis, 480 So. 2d 625 (Fla.1985).
We reverse on the cross-appeal. The court erred when it failed to award to the buyers attorneys’ fees which are provided to the prevailing party in any litigation arising out of the parties’ sales con tract. Contrary to the appellants’ contention, this contract provision is not merged into the warranty deed. See Am. Nat’l Self Storage, Inc. v. Lopez-Aguiar, 521 So. 2d 303 (Fla. 3d DCA 1988) (collateral agreements not usually included in terms of a deed are not affected by merger rule). Further, the trial court, without knowledge of our recent decision and opinion in Thomas v. Toth, 539 So. 2d 8 (Fla. 2d DCA 1989), awarded prejudgment interest from the date of the correction of the defect rather than from the date of the closing. On remand the trial court should enter an award of attorneys’ fees and recompute the prejudgment interest.
Affirmed in part, reversed in part, and remanded with instructions.
RYDER, A.C.J., and DANAHY and FRANK, JJ., concur.
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Stevens v. Zakrzewski, 826 So. 2d 520 (Fla. 4th DCA 2002)…J., concur. . The sale and purchase agreement provided in part that: "[sjeller is not aware of any prior existing environmental condition ... that may give rise as against Seller or the property to an action.” . Appellee relies on Burkett v. Rice, 542 So. 2d 480, 481 (Fla. 2d DCA 1989), for ils holding that an attorney’s fee provision in a contract for sale of property does not merge into the warranty deed. Burkett is not necessarily controlling here since the outcome in the instant case must be controlled…
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Tibbetts v. Nichols, 578 So. 2d 17 (Fla. 1st DCA 1991)…gonaut Insurance Co. v. May Plumbing Co., 474 So. 2d 212 (Fla.1985). We direct the court to determine on remand the Tibbetts’ damages as of the date of closing, and to award prejudgment interest at the statutory rate from that date. Burkett v. Rice, 542 So. 2d 480 (Fla. 2d DCA 1989); Thomas v. Toth, 539 So. 2d 8 (Fla. 2d DCA 1989). Finally, we conclude that the Tib-betts were entitled to recover the attorney’s fees they incurred in their litigation against lessee Rodrigue. A covanantee is entitled to recover…
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Marian M. and Robert C. Reid v. Dogulas S. Crucet and Michael H. Sheridan, 615 So. 2d 858 (Fla. 1st DCA 1993)…Johnson v. Davis, 480 So. 2d 625 (Fla.1985). However, the trial court erred in failing to award the Reids their attorney’s fees and in awarding prejudgment interest from the date of the jury verdict rather than the date of closing. Burkett v. Rice, 542 So. 2d 480 (Fla. 2d [*859] DCA 1989); and Thomas v. Toth, 539 So. 2d 8 (Fla. 2d DCA 1989). AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion. ERVIN, SMITH and BARFIELD, JJ., concur.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Johnson v. Morton Davis and Edna Davis, 480 So. 2d 625 (Fla. 1985)
- Martin Cnty. Liquors, Inc. v. Dep't of Bus. Reg., 539 So. 2d 8 (Fla. 1st DCA 1989)
- Am. Nat'l Self Storage, Inc. v. Lopez-Aguiar, 521 So. 2d 303 (Fla. 3d DCA 1988)