193 So. 3d 86
Fla. Dist. Ct. App.2016Background
- Buyer purchased a residential home from a seller who acted as the listing agent affiliated with broker Rose Realty West, Inc.
- Seller/agent completed a seller disclosure stating he had no knowledge of defects.
- After closing, buyer discovered numerous latent defects materially affecting the property's value that were not readily observable and unknown to buyer.
- Buyer sued seller, the broker (Rose Realty), and others for fraudulent nondisclosure under Johnson v. Davis principles.
- The trial court granted summary judgment for the broker without explanation; buyer appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether broker can be liable for seller/agent's fraudulent nondisclosure | Seller/agent knew latent defects and broker is liable under agency law and Johnson duty to disclose | Broker argued seller/agent acted outside scope of agency (fraudulent acts) so broker not liable | Reversed: factual disputes exist and broker can be liable where agent acted to further broker's interest (commission) |
| Whether summary judgment for broker was appropriate | Disputed facts about knowledge and scope of agency preclude summary judgment | Broker sought judgment as matter of law | Reversed: genuine issues of material fact exist; summary judgment improper |
| Scope of agency for intentional wrongdoing | Principal is liable for agent's torts within scope if motivated to serve principal's interest | Broker contended fraud removes acts from scope of agency | Court: fraudulent acts can still be within scope if motivated in part to serve principal's interest; fraud does not automatically absolve principal |
| Application of Johnson duty to broker | Johnson duty extends to seller's broker when seller is agent | Broker argued defenses raise factual disputes | Court: Johnson applies to seller's broker; defenses raise disputed factual issues unsuitable for summary judgment |
Key Cases Cited
- Johnson v. Davis, 480 So. 2d 625 (Fla. 1985) (sellers must disclose known facts materially affecting value that are not readily observable and unknown to buyer)
- Syvrud v. Today Real Estate, Inc., 858 So. 2d 1125 (Fla. 2d DCA 2003) (Johnson duty extends to seller's broker)
- Nessim v. DeLoache, 384 So. 2d 1341 (Fla. 3d DCA 1980) (principal liable for agent's torts within scope of employment, even if fraudulent)
- Reeves v. N. Broward Hosp. Dist., 821 So. 2d 319 (Fla. 4th DCA 2002) (summary judgment standard: view facts in light most favorable to non-moving party)
- Revitz v. Terrell, 572 So. 2d 996 (Fla. 3d DCA 1990) (acknowledging broker liability under seller-agent facts)
- McGhee v. Volusia Cty., 679 So. 2d 729 (Fla. 1996) (conduct is within scope if motivated at least in part to serve principal)