PETER STEINBERG AND INA STEINBERG, HIS WIFE, APPELLANTS,
v.
BAY TERRACE APARTMENT HOTEL, INC., A FLORIDA CORPORATION, APPELLEE
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Plaintiffs appealed a dismissal of their complaint against a real estate seller, alleging fraud and breach of representation regarding the permitted use of an apartment building they purchased. The court reversed the dismissal, holding that the complaint stated a valid cause of action despite the trial court's reliance on lack of privity, merger doctrine, and absence of express warranties.
The complaint stated a valid cause of action and should not have been dismissed on the grounds of lack of privity, merger, or lack of warranties regarding zoning. The trial court erred in dismissing the complaint.
[1] A complaint alleging fraud, mistake, or breach of contract based on a seller's misrepresentation of property use states a cause of action and should not be dismissed.
[2] A contract for the sale of real property may be set aside if the property's designated use, as represented by the seller, is found to be inaccurate and leads to a fraudul…
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Join FLexlaw to unlock all legal intelligence“the complaint stated a cause of action and should not have been dismissed”
The core holding that reversal was appropriate because the motion to dismiss was improperly granted.
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Join FLexlaw to unlock all legal intelligencePlaintiffs contracted to purchase an apartment house represented as containing twenty-three efficiency units. After closing, the Building and Zoning D…
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PER CURIAM.
This is an appeal by plaintiffs from an order dismissing their complaint, with prejudice.
The complaint alleged that plaintiffs entered into a contract for the purchase of an apartment house from the defendant, that under the terms of the contract the apartment house to be purchased consisted of twenty-three efficiency units -and that based upon such representations^ the transaction was closed. At the time of closing-, plaintiff, Peter Steinberg executed a purchase money mortgage in favor of the defendant.
After the closing, the Building and Zoning Department of the City of Miami Beach advised plaintiffs that the apartment house which plaintiffs purchased from defendant, had a designated use of ten units and could not be occupied by twenty-three tenants, nor had permits ever been issued changing the use from ten units to twenty-three units.
It was further alleged that defendant, through its officers, knew that the apartment house which it sold could not be used for the rental of twenty-three efficiency units and that such action on the part of said defendant was a fraud upon plaintiffs, or in the alternative, was the result of a mistake or, that it was a breach of a representation set forth in the contract.
Plaintiffs sought to have the transaction set aside and offered to make an accounting to defendants.
The defendant moved to dismiss the complaint on the grounds (1) that the plaintiffs are an estate by the entireties by virtue of a warranty deed from Peter Steinberg to Ina Steinberg and Peter Steinberg, husband and wife, and the defendant did not convey title to the plaintiffs, but instead, conveyed title to Peter Steinberg, individually, and therefore, the plaintiffs are not in privity with the defendant; (2) that the defendant made no warranties or representations to the plaintiffs estate by the entireties; (3) that there are no representations or warranties set forth in the contract for sale with regard to zoning; (4) that plaintiffs do not allege anywhere that they relied upon representations made by the defendant nor that they, had a right to rely on representations made by the defendant.
The complaint was dismissed, with prejudice, on the grounds of lack of privity, merger of contract into the deed and lack of any warranties with respect to zoning.
The appellants contend that the trial court erred in ruling that (1) the plaintiffs did not have sufficient standing: (2) that there was a merger of the contract into the deed, and (3) that there was a lack of any warranties with respect to zoning.
Upon review of the complaint and consideration of the points on appeal, we have concluded that the trial court erred in dismissing the complaint. We hold that the complaint stated a cause of action and should not have been dismissed. Gabel v. Simmons, 100 Fla. 526, 129 So. 777 (Fla. 1930); Musselwhite v. Oleson, 60 Fla. 342, 53 So. 944 (Fla.1910); Milu, Inc. v. Duke, 204 So. 2d 31 (Fla.3d DCA 1967); Soper v. Stine, 184 So. 2d 892 (Fla.2d DCA 1966).
Reversed and remanded for further proceedings.
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Cited By
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Steinberg v. BAY Terrace Apt. Hotel, Inc., 375 So. 2d 1089 (Fla. 3d DCA 1979)…denial of the acceleration and foreclosure was presented by appellants. Campbell v. Werner, 232 So. 2d 252 (Fla. 3d DCA 1970). The order appealed is, therefore, affirmed in all respects. Affirmed. . Steinberg v. Bay Terrace Apartment Hotel, Inc., 363 So. 2d 58 (Fla. 3d DCA 1978). . Subsequent to the appellate decision, the Steinbergs filed a notice of voluntary dismissal as to the former complaint and the trial court allowed the above-mentioned counterclaim to be filed and evidence heard on the action to…
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Fraser v. Schoenfeld, 364 So. 2d 533 (Fla. 3d DCA 1978)…aw in Volunteer Security Co. v. Dowl, 159 Fla. 767, 33 So. 2d 150, 151 (1947); and Stephan v. Brown, 233 So. 2d 140, 141 (Fla.2d DCA 1970). The present case is distinguished from our recent opinion in Steinberg v. Bay Terrace Apartment Hotel, Inc., 363 So. 2d 58 (Fla.3d DCA 1978), in that, first of all, the Steinberg case dealt with the dismissal of a complaint. Secondly, and of more importance, is the fact that the Steinberg opinion is based on an exception to the general rule of merger. As stated in Milu,…
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Performance Cars, Inc. v. Inside Trader, Inc., 705 So. 2d 139 (Fla. 3d DCA 1998)…le Lincoln Mercury, Inc. v. Fallaro, 616 So. 2d 594 (Fla. 4th DCA 1993); Kala Invs., Inc. v. Sklar, 538 So. 2d 909 (Fla. 3d DCA 1989); Laufer v. Norma Fashions, Inc., 418 So. 2d 437 (Fla. 3d DCA 1982); Steinberg v. Bay Terrace Apartment Hotel, Inc., 363 So. 2d 58 (Fla. 3d DCA 1978); Tusa v. Omaha Auto. Auction, Inc., 712 F. 2d 1248 (8th Cir.1983).…
Authorities Cited
- Ervin M. Smith, Jr. v. State, 204 So. 2d 31 (Fla. 3d DCA 1967)
- Gabel v. Simmons, 100 Fla. 526 (Fla. 1930)
- Musselwhite v. Svend Oleson, 60 Fla. 342 (Fla. 1910)
- Bailey v. State, 184 So. 2d 892 (Fla. 1st DCA 1966)
- Soper v. Stine, 184 So. 2d 892 (Fla. 2d DCA 1966)