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Court of Appeal of Florida, Fourth District
September 1, 2021, Decided
[*299] Forst, J.
Appellant Robert Lorber ("Buyer") appeals the trial court's entry of final summary judgment in favor of Appellee Jeffrey Passick, as Successor Trustee of the Sylvia Passick Revocable Trust ("Seller"), in the latter's action stemming from a failed real estate transaction. As set forth below, we conclude that the trial court erred in granting Seller's motion for summary judgment as to Buyer's counterclaims, and that the trial court therefore necessarily erred in later entering final summary judgment on the underlying complaint in favor of Seller.
Pursuant to an "'As Is' Residential Contract for Sale and Purchase" ("Purchase Agreement"), Buyer agreed to purchase certain real property from Seller. However, immediately before closing, Buyer's agent informed Seller via email that [**2] Buyer no longer consented to the Purchase Agreement. As stated in the email:
Ever since my client first came to the home, he indicated that there was a suspicious odor. We inquired about this and asked if there was any reason or cause for this. 48 hours before closing my client finds out through his insurance company that this home had substantial water damage throughout which is supported by these insurance docs.
My client believes that this odor is due to this water damage . . . [and] states that when he went to the home today, that the odor was strong and he sensed a burning feeling in his lungs.
(Emphasis added). Later, Buyer's agent informed Seller that Buyer had instructed him to cancel the Purchase Agreement.
A. Buyer's Counterclaim
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
327 So. 3d 297 *; 2021 Fla. App. LEXIS 12664 **; 46 Fla. L. Weekly D 1952; 2021 WL 3891004
ROBERT LORBER, Appellant, v. JEFFREY PASSICK, as Successor Trustee of the Sylvia Passick Revocable Trust, Appellee.
Prior History: [**1] Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; James L. Martz, Judge; L.T. Case No. 50-2018-CA-007776-XXXX-MB.
Buyer, Seller, flood, Counterclaim, intrusion, misrepresentation, diligent attention, summary judgment, smell, odor, trial court, residential, negligent misrepresentation, representations, Disclosure, fraudulent misrepresentation, summary judgment motion, musty, disclose, induce, genuine issue of material fact, fraud in the inducement, real property, deposit, falsity, investigate, issue of material fact, duty to disclose, material fact, dank
Civil Procedure, Summary Judgment, Entitlement as Matter of Law, Appropriateness, Evidence, Inferences & Presumptions, Inferences, Appeals, Summary Judgment Review, Standards of Review, Judgments, Entitlement as Matter of Law, Genuine Disputes, Real Property Law, Purchase & Sale, Remedies, Duty to Disclose, Standards of Review, Questions of Fact & Law, Torts, Business Torts, Fraud & Misrepresentation, Actual Fraud, Actual Fraud, Elements, Negligent Misrepresentation