WINSTON L. GARESCHE AND ELIZABETH GARESCHE, HIS WIFE, APPELLANTS,
v.
TEXTURED COATINGS OF AMERICA, INC., ETC., ET AL., APPELLEES

Fla. 4th DCA | 1977-11-22
No. 76-1952
CROSS and ANSTEAD, JJ., concur.
352 So. 2d 1207 Florida District Court of Appeal, Fourth District (1977) Positive Treatment
Cited by 2 cases
Topics
Reliance Breach Of Warranty Fraud Prima Facie Case

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Opinion of the Court
DAUKSCH, Judge.

DAUKSCH, Judge.

Appellant sued the manufacturer, distributor and applicator of Tex-Cote, a fiberglass and asbestos material advertised to be an end to painting problems on house exteriors. The complaint alleges breach of warranty, fraud and negligence on the part of the various Defendants in the advertising, manufacturing and applying of the product. Upon a review of the evidence presented we find the court erred in directing a verdict for the Defendants.

For example, Appellants proved they relied upon allegedly untrue statements in a Textured Coatings of America, Inc. brochure which was distributed by or through the other Appellees. Appellants established their reliance thereon was to their detriment and otherwise established a prima fa-cie case against the Appellees. In addition, the uncontroverted proof was that the Tex-Cote, which had deteriorated to an unsightly peeling, could not be removed and it would take $1,650.00 to cover the unappealing areas with aluminum siding. Of course, maybe the Appellees at trial can prove otherwise but the matter should be tried. We remand this matter for trial on all issues.

REVERSED and REMANDED with directions.

CROSS and ANSTEAD, JJ., concur.

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Cited By

  • Blackton Bldg. Supply Co., Inc. v. Winston L. Garesche et ux., 383 So. 2d 250 (Fla. 5th DCA 1980)
    …sed with directions to enter judgment for the appellant. REVERSED. CROSS and SHARP, JJ., concur. . This is the second appearance of this case before an appellate court. The first case is reported as Garesche v. Textured Coatings of America, Inc., 352 So. 2d 1207 (Fla. 4th DCA 1977). There the court reversed a directed ver-diet for all defendants, holding there to be sufficient evidence of misrepresentation of the product to make a prima facie case. The jury has now dispelled the claim of misrepresentation b…

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