SOUTH FLORIDA CITRUS INDUSTRIES, INC., A FLORIDA CORPORATION, PETITIONER,
v.
JOSEPH TONKOVICH AND ALBINA A. TONKOVICH, HIS WIFE, RESPONDENTS
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The Florida Supreme Court granted certiorari to review a District Court decision in a land purchase dispute involving fraud allegations, specifically to address whether a purchaser's reliance on a seller's representations was justified when both parties had equal access to verification means. The Court remanded the case for further consideration of whether the purchaser's subsequent conduct constituted a waiver of rescission rights.
The Court held that the record did not adequately establish whether the trial court's summary judgment was based on the legal implications of the representations or on waiver grounds. The Court determined that the purchaser's subsequent conduct—demanding delivery of the deed, executing and delivering a note and mortgage for the five-acre tract, and making payments—raised substantial factual questions about waiver that were not properly resolved on summary judgment.
“in a land purchase transaction, where both parties have equal access to the means of verifying representations, reliance by the purchaser on the seller's representations is justified”
Statement of the legal question certified for review regarding the duty to verify representations in real estate transactions
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Join FLexlaw to unlock all legal intelligenceIn a land purchase transaction, the seller (South Florida Citrus Industries) allegedly made fraudulent representations to the purchasers (the Tonkovic…
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Certiorari was granted by us to review an alleged conflict between the decision of the District Court of Appeal, Second District, in this case, reported at 185 So.2d 710, and our holding-in Davis v. Dunn, Fla., 58 So.2d 539, on the question of whether, in a land purchase transaction, where both parties have equal access to the means of verifying representations, reliance by the purchaser on the seller’s representations is justified. The facts are detailed in the District Court’s opinion.
However, before coming to the question so posed, we are confronted by the District .Court’s treatment of the defense of waiver, which it summarily disposed of in the following language:
“The appellee’s second point in defense of the decree is that the appellants’ conduct amounted to a waiver of their rights to rescind. This is an issue of fact, which is not properly resolvable on the basis of this record. The only evidence of a possible waiver is several pieces of correspondence from the appellants, which Mr. Tonkovich stated were written upon the advice of his attorney. There is also some evidence of a payment having been made at some time after the discovery of the alleged fraud, but we are unable to see how this isolated incident could be a basis for awarding summary judgment. There has not been a showing of such delay or other conduct on the part of the appellants amounting to a waiver. See 2 Pomeroy, supra, Sec. 872.”
The record does not disclose whether the trial court’s grant of a summary judgment in favor of the seller (Petitioner here) was based on the legal implications flowing from the admitted facts surrounding the representations or from its legal view of the admitted facts claimed to constitute a waiver. The District Court’s treatment of the waiver question appears perfunctory, since the record discloses that after full knowledge of the facts the purchasers demanded and received delivery of their deed to the ten acre tract, and subsequently, indeed while this very suit was pending, executed and delivered their note and mortgage covering the five acre tract, which was also affected by the same claim of fraud, and in fact paid the first instalment due on the note. Thus, we have not only the corre*440spondence alluded to in the District Court’s opinion, but what might almost amount to an affirmative approval of the transactions. A substantial portion of the oral argument before us is revolved about this question.
Since the record on this point was not fully explored by the District Court of Appeal, the writ of certiorari is granted and this cause remanded to the District Court of Appeal for further consideration in the light of this opinion.
THORNAL, C. J., and THOMAS and DREW, JJ., concur.
CALDWELL, J., dissents.
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Tonkovich v. S. Fla. Citrus Indus., Inc., 202 So. 2d 579 (Fla. 2d DCA 1967)…dge. This case originally appeared before this court in an opinion reported in 185 So. 2d 710. The facts are detailed in said opinion and it would serve no purpose to reiterate all of them herein. The Florida Supreme Court in an opinion reported at 196 So. 2d 438 has remanded the cause to this court for further consideration in the light of that opinion. A careful analysis of the record on appeal shows the following uncontradicted facts.. The Tonkoviches became aware on June 25, 1963 of all of the facts upo…
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Finney v. Frost, 228 So. 2d 617 (Fla. 4th DCA 1969)…to act in reliance thereon; (4) action by the plaintiff in reliance on the correctness of the representation; and (5) resulting damage to the plaintiff. Tonkovich v. South Florida Citrus Industries, Inc., Fla.App.1966, 185 So. 2d 710 (cause remanded 196 So. 2d 438 and 202 So. 2d 579, Fla.App.1967). There is no evidence in the record which could sustain a verdict in favor of the plaintiff. The evidence is insufficient to establish that the defendant knew the bills were not paid or that he told the plaintiff t…
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Weisfeld v. Weisfeld, 513 So. 2d 1278 (Fla. 3d DCA 1987)…oach. Because we deem the analytical approach to be the more enlightened view, we follow the reasoning of those states subscribing to it.2 See Tonkovich v. South Florida Citrus Indus., Inc., 185 So. 2d 710 (Fla. 2d DCA 1966), rev’d on other grounds, 196 So. 2d 438 (Fla.1967). Mr. Weisfeld argues that the workers’ compensation award is not marital property because it was intended to provide compensation only for future medical expenses and does not represent recovery for his lost [*1282] income or earning cap…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Davis v. Dunn, 58 So. 2d 539 (Fla. 1952)
- Tonkovich v. S. Fla. Citrus Indus., Inc., 185 So. 2d 710 (Fla. 2d DCA 1966)