Baker County
(1) JERRY DENDY and AUDREY DENDY, his wife vs. DONALD A. FULTON and CARLA A. FULTON, his wife; and COMMONWEALTH LAND TITLE INSURANCE CO., a Foreign for Profit Corp.
County/Docket #/Judge: Baker / 02-2007-CA-0131 / Elzie S. Sanders
Plaintiff(s) Attorney(s): Daniel M. Copeland, Jacksonville
Defendant(s) Attorney(s): John S. Cooper of Cooper Law Firm, Jacksonville, and Michael S. Drews, Jacksonville, for Fultons; Martin S. Awerbach of Awerbach & Cohn, Clearwater, for Commonwealth
Age/Sex/Occupation Of Plaintiff: Jerry Dendy: n/a / M / Trucking Co. Owner; Audrey Dendy: 57 / F / Trucking Co. Owner
Cause Of Injury: Contract/Breach of Warranty of Title/Commercial Property. This action arose out of the sale of improved commercial real property by Defendants Fultons to Plaintiffs on March 31, 2005. At closing, Plaintiffs alleged that they were given a General Warranty Deed to property in Baker County, with a legal description that erroneously contained additional property not actually owned by the Defendants and indicated that the property contained 2.91 acres of land. However, Defendants maintained that for seven years prior to the sale, they actually did pay on 2.91 acres. The description in the General Warranty Deed from the Defendants to Plaintiffs was the exact description that was on the Warranty Deed the Defendants were given when they purchased the property in 1998. The Sale and Purchase Contract between the Defendants and Plaintiffs indicated that the Defendants were selling to the Plaintiffs and the Plaintiffs were purchasing 2.91 acres. Defendants, in reality, only owned 2.29 acres of land. Plaintiffs then made a claim against their title insurance policy to recoup the money paid for the .62 acres that they paid for but for which they did not receive clear title. Plaintiffs instituted this action against the Defendants Fultons for breach of warranty of title, and against Defendant Commonwealth for breach of contract for failing to pay a claim against the tile insurance policy for the erroneous deed.
Defendants Fultons did not admit liability or any damages. Defendants admitted that a Warranty Deed dated March 23, 2005, was prepared for them by Osceola Land Title, Inc. (a nonparty), and that Plaintiffs signed the warranty deed.
Defendant Commonwealth’s affirmative defenses were based on the following: (1) Plaintiffs were barred from recovery of damages from Defendant Commonwealth for any claim in connection with title to the additional parcel because Plaintiffs entered into the contract with the intent, understanding, and agreement that they were purchasing only Defendants Fultons’ parcel; (2) Plaintiffs were barred from recovery of damages from Defendant Commonwealth for any claim in connection with title to the additional parcel because Plaintiffs received title to Defendants Fultons’ parcel, which was exactly what they intended to purchase and bargained for; and (3) Plaintiffs were also barred from recovering damages for any claim in connection with title to the additional parcel because they would be unjustly enriched under circumstances that would be wholly inequitable.
Nature Of Injury: Monetary losses.
Expert Witnesses: n/a
Verdict: For the Defendants on November 20, 2008.
Judgment: $145,999.32 for Defendants on March 24, 2009 ($92,861.19 for Fultons – attorney’s fees and costs; $53,138.13 for Commonwealth – attorneys fees and costs).
Editor's Note: This was a four-day trial. There were two separate verdicts. In the verdict regarding Defendants Fultons, the jury found there was not a breach of warranty of title that was a legal cause of damage to Plaintiffs by Defendants Fultons. In the verdict regarding Defendant Commonwealth, the jury found the Plaintiffs agreed to accept the original deed from the Defendants Fultons knowing it included an unintended additional parcel that the Defendants Fultons did not own.
Pursuant to a stipulation between Plaintiffs and Defendants Fultons, the Court issued an order reforming Defendants Fultons’ Deed to delete the additional parcel.
In an Order dated September 16, 2009, the Court: (1) determined Defendants Fultons’ motion for partial summary judgment as to Count IV of the Amended Complaint for unjust enrichment was moot as a result of the Plaintiffs’ abandonment and withdrawal of Count IV by statements Plaintiffs’’ counsel in open court at a hearing on September 5, 2008; (2) granted Defendant Fultons’ motion for partial summary judgment as to Count I of the Amended Complaint and entered summary judgment in favor of Defendant Fultons and against Plaintiffs, as to Count I of the Amended Compliant for alleged failure to disclose; (3) denied Plaintiffs’ motion to strike Defendants Fultons’ motion for judgment on the pleadings or for a Rule 1.140(h)(2) dismissal; (4) denied Defendants Fultons’ motion for judgment on the pleading or for Tule 1.140(h)(2) dismissal; and (5) denied Plaintiffs’ motion for partial summary judgment.
At the pre-trial conference, the Court considered Plaintiffs’ motion to amend their complaint to add a claim for attorney’s fees in Count II of the Amended Complaint for alleged breach of warranty and title, and further, the motion of Defendants Fultons’ for a non-jury trial. The Court denied both motions on November 13, 2008.