Pressman v. Wolf

732 So. 2d 356, 1999 WL 30366
CourtDistrict Court of Appeal of Florida
DecidedJanuary 27, 1999
Docket97-1791, 97-3656
StatusPublished
Cited by14 cases

This text of 732 So. 2d 356 (Pressman v. Wolf) 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.

Bluebook
Pressman v. Wolf, 732 So. 2d 356, 1999 WL 30366 (Fla. Ct. App. 1999).

Opinion

732 So.2d 356 (1999)

Mario PRESSMAN and Fanita Pressman, Appellants,
v.
Ingrid WOLF, etc., Appellee.

Nos. 97-1791, 97-3656.

District Court of Appeal of Florida, Third District.

January 27, 1999.
Rehearing Denied May 12, 1999.

*357 St. Louis, Guerra & Auslander and Charles Auslander, for appellants.

Jeffrey A. Norkin, Miami; Mark C. Katzef, Aventura, for appellee.

Before SCHWARTZ, C.J., and NESBITT and SHEVIN, JJ.

NESBITT, J.

Buyer, Ingrid Wolf, and sellers, Fanita and Mario Pressman, entered into a contract for the sale of a house on Allison Island, Miami Beach. It was clear to all that the house was in need of renovation. The transaction closed "as is" for $500,000, with no warranty provisions concerning the home's significant components, including air conditioning system and pool.

Thereafter, when repair costs mounted to more than the amount the buyer had anticipated, she filed suit against the sellers. In addition to problems she discovered in the house, the buyer claimed she had relied on the sellers' promise that all repairs could be made for $100,000. According to the buyer, however, the final cost of repair was $225,000. The buyer also maintained that the sellers had stated that the view from the island home would be improved when an obstacle was torn down by municipal authorities who planned to extend a park; however, this had never occurred.

The buyer proceeded to trial claiming breach of contract and fraudulent misrepresentation and seeking declaratory relief and claiming slander of title. After two mistrials and a jury verdict in the third trial, the trial judge entered judgment in favor of the buyer for compensatory damages of $125,799 and punitive damages of $40,000. The trial judge denied sellers' motions for new trial, J.N.O.V., and directed verdict, and awarded the buyer prejudgment interest and attorneys fees.

The sellers maintain that the home was in obvious disrepair and that the buyer was in a position to discover whatever problems the home possessed, but instead, she had chosen to take her chances. Based on such a decision, they maintain, the law does not provide a remedy. We agree.

THE DEAL

Through negotiations, the parties modified and executed the standard "Contract for Sale and Purchase." Under the terms of the agreement, the buyer was to pay $250,000 by closing, interest payments for the interim months, and $250,000 a year later. Typed onto the line describing personalty was the following representation by the seller: *358 central a/c—heat, refrigerator, washer/dryer, hot water heater, stove top, existing fixture. ALL IN "AS IS" CONDITION.

Paragraph N of the contract was modified by an agreed crossing-out of any warranty that "the septic tank, pool, all major appliances, heating, cooling, electrical, plumbing systems and machinery are in WORKING CONDITION." The contract provided for inspection rights and a limitation of liability, concluding the purchaser waived all defects not declared and reported less than 10 days prior to closing.

Paragraph W, labeled "WARRANTIES." provided that:

Seller warrants that there are no facts known to Seller materially affecting the value of the Real Property which are not readily observable by Buyer or which have not been disclosed to Buyer.

This was the clause of the contract on which the purchaser based her breach and tort claims.

Paragraph A., labeled "EVIDENCE OF TITLE," allowed the seller 120 days to clear title, using diligent efforts, failing which buyer could accept the title as it then stood or demand a refund of deposits and release of the parties from further performance under the contract.

Paragraph V. labeled "OTHER AGREEMENTS," provided, in pertinent part, that:

No prior or present agreements or representations shall be binding upon Buyer or Seller unless included in this contract.

The buyer's real estate closing attorney, Kathy Gregg, or her secretary typed the "as is" clause into the contract. Either Gregg or her secretary crossed-out the line that would otherwise have provided warranties as to the pool, air conditioning and other major systems in the home. Gregg recalled advising the buyer against extinguishing these warranties, which would otherwise have required the seller to promise that these integral elements of the home were in working condition. According to Gregg, however, the buyer made a "business decision," believing sellers' assertions that the home's appliances were in working order. Defects in title were resolved by an escrow at closing on October 25, 1990, with one remaining title defect cleared in March of 1991.

THE INSPECTIONS

Prior to closing, the buyer had ordered and reviewed inspection reports on the home, several of which warned that the true condition of certain elements could not be determined without more detailed inspection. The buyer nonetheless chose not to perform any additional tests, and closed on the home.

Before signing the contract, the buyer and a friend visited the house. The buyer was concerned with the home's structural integrity and worried that there were cracks in the pool and possibly termites in the structure. She had seen that the level of the water (dirty water) in the pool was under the pool pipeline.

Building Inspection Services, Inc. (BIS) and Snapp Construction performed the pre-closing inspections at the buyer's request. These inspections uncovered possible serious problems with numerous aspects of the home. In fact, as stated above, the buyer's attorney warned the buyer prior to closing that she should renegotiate the deal because the inspections had turned up unanswered questions, including possible problems with pool, pilings and structural integrity. The buyer nonetheless decided to proceed.

The first BIS report was prepared on August 1, 1990, two months before closing and three months after signing the purchase contract. It reported evidence that termites were eating away at part of the roof, and that there was a possibility of structural damage. Prior to closing, the buyer chose not to perform further inspection although such an inspection was available to her, according to the BIS representative. *359 The home was tented for fumigation and a credit was provided at closing. The buyer also had the house treated for subterranean termites.

The same pre-closing inspection reported that the operation of the air conditioning system could not be adequately determined. One condenser unit had to be replaced and another was in need of repair. The inspection report twice concluded: "Notation: Further functionability of this system cannot be determined until all repairs are completed."

As to the pool, the BIS inspection reported that air bubbles were observed, as were cracks, indicating leakage. The report recommended that the pool system be serviced and that, due to the cracks, it be "checked for leakage over an extended period of time." The report also stated that "there is evidence of pool deck settlement."

Unhappy with the results of the BIS inspection and concerned about the pool construction, the buyer obtained another inspection of the pool and surrounding area. This inspection, from Snapp Construction, acknowledged that epoxy that had been applied to stop leakage as a temporary fix but that more work needed to be done. Snapp's findings of damage to the pool were consistent with those reported by BIS. Despite the warnings from these experts, the buyer requested no further pressure check of the pool's pipes.

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Cite This Page — Counsel Stack

Bluebook (online)
732 So. 2d 356, 1999 WL 30366, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pressman-v-wolf-fladistctapp-1999.