WILLIAM R. SMYTH AND ELEANOR C. SMYTH, HIS WIFE, APPELLANTS,
v.
JANE C. COUSINS, INC., A FLORIDA CORPORATION, APPELLEE
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The Smyths purchased a residence and later discovered it was built in 1950, not 1973 as stated in an expired sales brochure. They sued the real estate broker Jane C. Cousins, Inc. for negligent misrepresentation, but the trial court granted summary judgment for Cousins, and this court affirmed, holding that a broker cannot be liable for misrepresentations in a listing brochure when it did not participate in the sale or make representations to the purchasers.
The court affirmed summary judgment for Cousins, holding that a broker cannot be liable for negligent misrepresentation absent affirmative action by the broker in advertising or making representations to the purchaser. The expired brochure, prepared by the seller for the multiple listing service, does not impose liability on Cousins.
[1] A real estate broker is not liable for negligent misrepresentation absent affirmative action in advertising the sale or making representations to the purchaser.
[2] A purchaser cannot rely on representations in a real estate sales brochure when the listing has expired and the brochure was prepared for the use of other realtors.
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Join FLexlaw to unlock all legal intelligence“In order to sustain an action for negligent misrepresentation there must be some affirmative action on the part of the defendant broker in advertising the sale of the property.”
Establishes the legal standard for broker liability in negligent misrepresentation claims
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Join FLexlaw to unlock all legal intelligenceIn 1967, Elizabeth Mitchell purchased and renovated a residence, expanding it from 1,200 to approximately 3,500 square feet and adding a swimming pool…
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PER CURIAM.
Plaintiff purchaser appeals a final summary judgment entered in favor of Jane C. Cousins, Inc., one of the defendants in an action for cancellation of a deed and damages for negligent misrepresentation arising out of the sale of a single family residence.
In 1967, defendant Elizabeth Mitchell (not a party to this appeal) pdrchased the subject residence and renovated a substantial portion by adding approximately 2300 sq. feet to the original 1200 sq. feet and a swimming pool. In 1974, when Ms. Mitchell was a real estate salesperson working out of the office of the defendant-appellee, Jane C. Cousins, Inc., she listed her residence for sale with the Coral Gables Board of Realty Multiple Listing Service, of which Cousins was a member. To have a property listed with this service, a seller had to apply through a broker member and Ms. Mitchell listed through Cousins. It was Cousins’ policy not to participate in commissions on property owned by salespersons connected with that office. Ms. Mitchell paid the listing fee and prepared for the use of realtors subscribing to the service, a sales brochure which described her residence as being built in 1973. At the bottom of the brochure was the following in bold print:
“THIS OFFERING SUBJECT TO OMISSIONS, ERRORS AND PRIOR SALE WITHOUT NOTICE.”
Subsequently, the listing expired and all the subscribing realtors were so informed. Some eight months later, plaintiff-appellants, William and Eleanor Smyth, came in contact with Helen Gaylor of Coral Gables Realty. Ms. Gaylor made several inspections of the Mitchell residence with the Smyths who were given a copy of the expired sales brochure. The Smyths purchased the residence and after taking possession they made extensive repairs and discovered that the residence was originally built in 1950. The Smyths then filed the present action against Ms. Mitchell and Cousins. Following pretrial discovery, Cousins moved for summary judgment. After hearing argument of counsel, the trial court entered summary judgment as to Cousins. The Smyths appeal. We affirm.
In order to sustain an action for negligent misrepresentation there must be some affirmative action on the part of the defendant broker in advertising the sale of the property. See Nantell v. Lim-Wick Construction Company, 228 So. 2d 634 (Fla.4th DCA 1969) and Cf. Diaz v. Keyes Company, 143 So. 2d 554 (Fla.3d DCA 1962). There is no showing in the record that Cousins participated in any part of the sale, received a commission or made any representations to the Smyths in connection therewith. Further, the brochure was prepared for the 'use of the relators belonging to the multiple listing service and the listing had expired. Under the circumstances, we find that the Smyths are precluded from relying upon the brochure. See Ruwitch v. First National Bank of Miami, 291 So. 2d 650 (Fla.3d DCA 1974); Walker v. Mebane, 279 So. 2d 386 (Fla.4th DCA 1973).
Affirmed.
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Cameron v. Outdoor Resorts OF Am., Inc., 611 F.2d 105 (5th Cir. 1980)…ngs. Henderson could only have been found liable for common law fraud on the basis of his actual misrepresentations or his actual participation in his colleagues’ misrepresentations, and not as a controlling person. Smyth v. Jane C. Cousins, Inc., 358 So. 2d 1158, 1159 (Fla.Dist.Ct.App.1978); Goodman v. Strassburg, 139 So. 2d 163, 164 (Fla.Dist.Ct.App.1962). The findings of fact are somewhat indefinite, but the findings and amended conclusions of law of the district court must be construed to hold for Hender…
Authorities Cited
- Nantell v. Lim-Wick Constr. Co., 228 So. 2d 634 (Fla. 4th DCA 1969)
- Ruwitch v. First Nat'l Bank OF Miami, 291 So. 2d 650 (Fla. 3d DCA 1974)
- Diaz v. The Keyes Co., 143 So. 2d 554 (Fla. 3d DCA 1962)
- Walker v. Mebane, 279 So. 2d 386 (Fla. 4th DCA 1973)