Matusick v. DiSalvo

District Court of Appeal of Florida

Matusick v. DiSalvo

82 So. 3d 1045, 2011 WL 4056256, 2011 Fla. App. LEXIS 14556

CourtDistrict Court of Appeal of Florida

DecidedSeptember 14, 2011

DocketNo. 4D10-1127

StatusPublished

Cited by1 cases

This text of 82 So. 3d 1045 (Matusick v. DiSalvo) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Matusick v. DiSalvo, 82 So. 3d 1045, 2011 WL 4056256, 2011 Fla. App. LEXIS 14556 (Fla. Ct. App. 2011).

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Opinion

WARNER, J.

The trial court dismissed appellants’ complaint for breach of contract, fraudulent and/or negligent misrepresentation, and declaratory judgment in connection with the lease of real estate. We affirm the dismissal of appellants’ complaint for breach of contract, fraud, and negligent misrepresentation, because the allegations of the complaint show on their face that appellants waived the fraud and breach of contract by executing an amendment to the contract to reduce their rent after they were aware of the fraud. See Harpold v. Stock, 65 So.2d 477 (Fla.1953); Bern v. Key W. Propane Gas Corp., 72 So.2d 910, 913 (Fla.1954). See also Merovich v. Huzenman, 911 So.2d 125, 127 (Fla. 3d DCA 2005) (execution of a contract with knowledge that an initial agreement was fraudulently procured constitutes a waiver of claims based on the previous fraud.).

We reverse, however, the dismissal of the declaratory judgment count, as the appellees did not seek dismissal of this count in the trial court. We find that count states a cause of action.

Affirmed in part; reversed in part.

LEVINE and CONNER, JJ., concur.

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WARNER, J.

The trial court dismissed appellants’ complaint for breach of contract, fraudulent and/or negligent misrepresentation, and declaratory judgment in connection with the lease of real estate. We affirm the dismissal of appellants’ complaint for breach of contract, fraud, and negligent misrepresentation, because the allegations of the complaint show on their face that appellants waived the fraud and breach of contract by executing an amendment to the contract to reduce their rent after they were aware of the fraud. See Harpold v. Stock, 65 So.2d 477 (Fla.1953); Bern v. Key W. Propane Gas Corp., 72 So.2d 910, 913 (Fla.1954). See also Merovich v. Huzenman, 911 So.2d 125, 127 (Fla. 3d DCA 2005) (execution of a contract with knowledge that an initial agreement was fraudulently procured constitutes a waiver of claims based on the previous fraud.).

We reverse, however, the dismissal of the declaratory judgment count, as the appellees did not seek dismissal of this count in the trial court. We find that count states a cause of action.

Affirmed in part; reversed in part.

LEVINE and CONNER, JJ., concur.

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Bluebook (online)

82 So. 3d 1045, 2011 WL 4056256, 2011 Fla. App. LEXIS 14556, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matusick-v-disalvo-fladistctapp-2011.

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