FRANK COLANDREA, APPELLANT,
v.
LELAND DWANE JOHANSEN, JR., APPELLEE
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Colandrea appeals a fraud and misrepresentation judgment arising from the sale of residential property. The court affirms liability but reverses and remands to reduce damages by $40,407.81, striking improper betterment and speculative future-cost awards.
The court affirms liability and the $89,856 benefit-of-the-bargain damages award but reverses the $20,096.81 betterment expenditure award and the $20,311 award for closing costs and speculative future sales costs, as such damages are not recoverable when the owner continues to possess and occupy the property.
[1] Benefit of the bargain damages are an appropriate measure in a fraud and misrepresentation action arising from the sale of residential property.
[2] Betterment damages are generally limited to actions in ejectment and are not recoverable in addition to benefit of the bargain damages when the property owner continues t…
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Join FLexlaw to unlock all legal intelligence“We know of no authority, and the parties have cited none, whereby a property owner can recover damages of this class in addition to benefit of the bargain damages while continuing to own and occupy the property.”
Establishes the court's holding that betterment damages are unavailable when the owner retains possession and occupancy of the property.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceColandrea sold a single-family residence to Johansen through allegedly fraudulent or misrepresentative conduct. The trial court awarded Johansen $89,8…
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PATTERSON, Judge.
Frank Colandrea challenges a final judgment for damages in favor of Leland Johan-sen, Jr. in a fraud and misrepresentation action arising from the sale of a single family residence. We determine that the evidence is sufficient to find Colandrea liable and, accordingly, affirm on the issue of liability. However, we reverse as to the damages the trial court awarded.
The trial court made an aggregate damage award to Johansen of $130,262.81. First, the trial court determined that Johan-sen was entitled to $89,856 in “benefit of the bargain” damages. Such damages are an appropriate measure in a case of this kind, and the expert testimony at trial supports an award in this amount. The court also awarded Johansen $20,096.81 in “betterment expenditures” representing improvements Jo-hansen had made to the property before discovering that his use of the ground floor was prohibited.
Betterment damages are generally limited to actions in ejectment under • chapter 66, Florida Statutes, to compensate a disposed occupant of lands for improvements made in good faith. The concept has been expanded to include improvements made by a purchaser in possession of residential property where it is later determined that title cannot be conveyed. See Horton v. O’Rourke, 321 So. 2d 612 (Fla. 2d DCA 1975). We know of no authority, and the parties have cited none, whereby a property owner can recover damages of this class in addition to benefit of the bargain damages while continuing to own and occupy the property. We therefore reverse this award.
The trial court then made an additional award of $20,311, representing $311 in closing costs Johansen expended at the time of purchase, and a hypothetical $20,000 for anticipated costs on a future sale of the property. The trial court made this award, apparently, in response to Johansen’s assertion that the limitation on the • use of the home rendered it unsatisfactory for his family’s needs. This speculative award is clearly erroneous and we likewise reverse it in its entirety.
We therefore strike $40,407.81 from the total award and remand for the entry of an amended final judgment.
Affirmed in part, reversed in part, and remanded.
HALL, A.C.J., and PARKER, J., concur.
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Bloch v. Wells Fargo Home Mortg., 755 F.3d 886 (11th Cir. 2014)…The Blochs alleged injury is speculative. Evidence of damages must be concrete, not based on speculation and conjecture. George Hunt, Inc. v. Dorsey Young Constr., Inc., 385 So. 2d 732, 733 (Fla. 4th DCA 1980).; see also Colandrea v. Johansen, 632 So. 2d 284, 285 (Fla. 2d DCA 1994). The Blochs do not allege they have paid any more than what was due under the loan, and admit they defaulted on the loan, as modified by the permanent loan modification they received, by failing to pay all amounts due under…
Authorities Cited
- Horton v. O'Rourke, 321 So. 2d 612 (Fla. 2d DCA 1975)