MICHELE L. SMITH AND SHANNON DOUGLAS SMITH

v.

VILMA RODRIGUEZ, TRACIE MALER AND J'MAKAA CORPORATION

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

MICHELE L. SMITH AND SHANNON

DOUGLAS SMITH,

Appellants,

v. Case No. 5D17-3194

VILMA RODRIGUEZ, TRACIE MALER

AND J'MAKAA CORPORATION,

Appellees.

________________________________/

Opinion filed April 26, 2019

Appeal from the Circuit Court for Hernando County, Donald E. Scaglione, Judge.

William S. Chambers, IV, of Campbell Trohn Tamayo & Aranda, P.A., Lakeland, for Appellants.

Carol M. Rooney and James K. Hickman, of Butler Weihmuller Katz Craig LLP, Tampa, for Appellees Tracie Maler and J'Makaa Corporation. No Appearance for Appellee Vilma Rodriguez.

PER CURIAM.

Appellants, Michele L. Smith and Shannon Douglas Smith, appeal an order dismissing with prejudice their claims against Appellees, Tracie Maler and J’Makaa

PROFESSIONAL INSPECTORS AND GOVERNMENTAL

AGENCIES

FOR

VERIFICATION

OF

PROPERTY

CONDITION, SQUARE FOOTAGE AND FACTS THAT

MATERIALLY AFFECT PROPERTY VALUE AND NOT ON

THE

REPRESENTATIONS

(ORAL,

WRITTEN

OR OTHERWISE) OF BROKER . . . .

The trial court dismissed the claims against Appellees based upon the above provision, despite the same paragraph providing:

This Paragraph 14 will not relieve Broker of statutory obligations under Chapter 475, F.S., as amended . . . .

This appeal follows. Appellants’ claims against Rodriguez remain pending in the trial court.

On appeal, Appellants argue that paragraph 14 does not bar their fraud and violation of chapter 475 claims because it expressly provides that “Paragraph 14 will not relieve Broker of statutory obligations under Chapter 475,” citing the first district’s decision in Kjellander v. Abbott, 199 So. 3d 1129 (Fla. 1st DCA 2016). We agree. In Kjellander, the court considered the effect of a non-reliance provision with nearly identical language to the contract in this case and concluded that the non-reliance provision did not bar claims for fraudulent misrepresentation and fraudulent concealment. Id. at 1131–32. In so doing, the Kjellander court reasoned that because the plaintiffs had “effectively allege[d] that the agents violated [chapter 455 and 475’s] statutory obligations, those counts were sufficient to withstand the agents’ motion to dismiss.” Id. at 1132. As in Kjellander, while the non-reliance provision effectively barred some claims, it did not bar claims based upon violations of chapter 475. While the provision at issue here could have been drafted more artfully, we agree with the Kjellander court’s analysis. Appellees have not offered any other reasonable interpretation of this provision, nor can we identify one. Appellees argue that our decision in Billington v. Ginn-La Pine Island, Ltd., 192 So. 3d 77 (Fla. 5th DCA 2016), is controlling and requires that we affirm the dismissal of the fraud claim. We disagree and find that the non-reliance provision in Billington is distinguishable because it did not include an exception for statutory obligations pursuant to chapter 475. We also conclude that Appellants sufficiently allege a private cause of action against Appellees pursuant to chapter 475. Cf. Moyant v. Beattie, 561 So. 2d 1319, 1320