Luis Virgilio v. Terrabrook Vista Lakes, L.P., 2012 U.S. App. LEXIS 10094

This is a class action by Luis and Norma Virgilio and others who bought homes in Ryland’s Newport subdivision (Vista Lakes, Orlando, Florida).
Pinecastle, adjacent to Newport and used as a WWII bombing range, contained unexploded ordnance and related materials; buyers were unaware of Pinecastle at purchase.
Plaintiffs allege defects in disclosure and seek damages for loss of property value; Count 2 seeks 1.5% of purchase prices as unjust enrichment, Count 1/3/4 seek damages under various theories.
District Court dismissed Counts 1, 2, 3 with prejudice or without prejudice and granted summary judgment on Count 4 in favor of Defendants.
On appeal, the Eleventh Circuit reviews de novo and affirms the district court’s judgments, holding no duty to disclose existed under Florida law for Counts 1, 3, and 4 and that Count 2 fails on unjust enrichment grounds.
Florida law governs; Johnson v. Davis sets a duty to disclose known material facts not readily observable; the court analyzes whether Defendants owed such a duty here and whether a broader duty could extend to marketing entities.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Defendants owed a Johnson v. Davis duty to disclose Pinecastle.	Virgilio argues Defendants acted as Ryland’s agents and had a disclosure duty.	Ryland and the marketing entities did not have a duty to disclose under Johnson beyond privity/agency with the seller.	Count 1 properly dismissed; no extension of Johnson duty to Defendants.
Whether unjust enrichment lies where Plaintiffs seek recovery of a marketing-fee-based benefit.	Plaintiffs claim they indirectly conferred a benefit via Ryland’s payment of the 1.5% fee.	Benefit was conferred to Defendants by Ryland’s contract; plaintiffs do not recover against the developers.	Count 2 properly dismissed; no unjust enrichment.
Whether FDUTPA claim survives where the asserted duty to disclose does not exist.	Count 3 should survive if FDUTPA can apply without a discrete duty to disclose.	Count 3 fails because the asserted duty to disclose does not exist under Florida law.	Count 3 properly dismissed.
Whether summary judgment on Count 4 for negligence was proper given duty analysis and discovery issues.	Rule 56(f) contemplates discovery to address duty; Florida foreseeability dictates duty in some cases.	No duty to disclose exists; economic-loss-only claim lacks a duty and discovery would not alter the legal question.	Summary judgment affirmed; no independent Florida duty to inform before contracting with Ryland.

Johnson v. Davis, 480 So. 2d 625 (Fla. 1985) (seller’s duty to disclose known, non-observable facts affecting value in home sales)
Rayner v. Wise Realty Co. of Tallahassee, 504 So. 2d 1361 (Fla. 1st Dist. Ct. App. 1987) (extension of Johnson’s duty to real estate brokers)
Revitz v. Terrell, 572 So. 2d 996 (Fla. 3d Dist. Ct. App. 1990) (further development of Johnson’s duty doctrine)
McCain v. Florida Power Corp., 593 So. 2d 500 (Fla. 1992) (economic-loss duty considerations in Florida negligence)
Fla. Power Corp. v. City of Winter Park, 887 So. 2d 1237 (Fla. 2004) (economic loss rule and duty considerations as gatekeeping in negligence)
Indemnity Insurance Co. of N.H. v. American Aviation, 891 So. 2d 532 (Fla. 2004) (duty analysis in economic-loss contexts)
Savers Fed. Sav. & Loan Ass’n v. Sandcastle Beach Joint Venture, 498 So. 2d 519 (Fla. 1st Dist. Ct. App. 1986) (discussion of Florida’s discovery and duty principles in claims)
Gldschmidt v. Holman, 571 So. 2d 422 (Fla. 1990) (agency control element for actual agency)