*1 920 ” no in the future. There would be review” evading review.’ In yet repetition,

ble were con- Bradford, 147, if the issues question 423 96 of mootness U.S. Weinstein v. victory repre- in a following (1975) (per cu sidered a union 347, 350 46 L.Ed.2d S.Ct. Nevertheless, possi- enlarged upon sentation election. riam), Supreme Court not Iowa, victory does future union bility v. of a as construed Sosna this doctrine and the State 400, jai industry alai require at 557: 95 S.Ct. 419 U.S. at 399 — disruption expense and undergo in the absence of a decided Sosna elec- repeated representation conceivably action, “capable repetition, class raise the permitted are tions before doctrine was limited yet evading review” juris- NLRB’s preliminary question of the where two elements com- to the situation diction. (1) challenged action was in its bined: litigated fully too short to be duration Accordingly, we reverse and remand (2) expiration, cessation or prior to its the district court for its consideration expectation there was a reasonable of the Board’s reviewability issue of the complaining party the same actions,1 opin- about which we intimate no again. the same action subjected to ion. If the court finds State’s Bradford, 149, reviewable, then v. 423 at 96 claim it should presently Weinstein U.S. is for de- request 349. Both of the criteria above are the merits of the S.Ct. at consider represen- present claratory satisfied in the case. relief.

tation election was over before and REMANDED WITH REVERSED the merits of the court could reach State’s INSTRUCTIONS. challenge directing to the NLRB order election, and, given the breadth of the jurisdiction, there

Board’s assertion of is

certainly expectation that the a reasonable jai in the alleged interest alai indus-

State’s

try be threatened such orders in the will Super Engineering Tire Co. v. future. HAUBEN, Plaintiff-Appellant, Oscar 115, 1694, McCorkle, 416 94 40 U.S. S.Ct. (1974), Supreme L.Ed.2d 1 Court held v. “capable repetition, yet evading that the Clayton HARMON, Harmon, W. Robert K. exception review” mootness doctrine Cypress Realty Jr. and Gardens In- applied employer challenged where an state surance, Inc., Defendants-Appellees. regulations according striking benefits to No. 77-1769. though particular workers even strike gave rise to the action had ended. of Appeals, United States Court Here, Tire, Super challenged as in “the Fifth Circuit. governmental activity ... is con- 2, Nov. 1979. tingent, evaporated disappeared, has not and, by continuing brooding pres- its 12, Rehearing Dec. Denied ence, may casts what well be a substantial peti- adverse effect on the interests of the 122,

tioning parties.” Id. at 94 S.Ct. argument exception

inapplicable present is that in the case the jurisdiction

NLRB’s assertion of and order

ing necessarily of elections will not “evade Herald, 473, (5th Greyhound Corp., (1958); Boire v. Miami 343 F.2d 17

1. See v. 376 Boire U.S. denied, 1965), (1964); 382 U.S. 86 S.Ct. 84 S.Ct. 11 L.Ed.2d 849 v. Cir. cert. Leedom Kyne, (1965). U.S. 79 S.Ct. 3 L.Ed.2d 210 L.Ed.2d 70 *2 buyer ap- of the broker’s claim. ment contending (1) peals from the holding erred in that the district court rescind, (2) entitled to was not jurisdiction lacked that the district court Clark, Emily Lawyer, W. C. Thomas A. *3 59(e) motion. We hear the sellers’ Rule III, Fla., Corcoran, Tampa, for Timothy without merit and find these contentions plaintiff-appellant. affirm. Summerlin, Harry King, E. Win- Roy C. entered into a buyer the On Fla., defendants-appellees. Haven, for ter pur- with the sellers land sale contract County, land in Lake

chase 834 acres of Florida, by south the With- on the bounded $717,240.00, River, of price a lacoochee provided per acre. The contract $860.00 GODBOLD, SIMPSON, and RO- Before price included all oil and purchase that the NEY, Judges. Circuit locat- rights. partially The land is mineral SIMPSON, Judge: Circuit Florida Water ed within the Southwest (the District) Management District and brought in the diversity This action was and Swamp Flood Detention Area Green buyer, by appellant district court Oscar consequently subject to condemnation Hauben, sellers, Clayton W. against for the flood control the State of Florida Harmon, Harmon Robert K. and the and Swamp Flood Deten- project. The Green broker, Realty & Insur- Cypress Gardens project control part tion Area is of a flood ance, Inc., seeking of a land sale rescission of purpose of which is the avoidance fraud, grounds misrepre- contract on the of by impounding water for a flood conditions sentation and concealment. Title U.S.C. feeding period to allow rivers out of the The sellers counterclaimed Section 1332. complete drainage. The area time to local of seeking damages for breach contract. appeal in this is wheth- controversy central The broker counterclaimed for its commis- er the sellers’ non-disclosure of State’s sion. possible prop- interest in the initially judgment The trial court entered erty gave buyer right to rescind the on their in the the sellers counterclaim contract. $83,400.00 amount of and ordered that The sellers did not disclose that a sub- fronuthe, paid judg- broker’s commission be lies within portion stantial parties post-trial ment. The filed various Swamp Flood Detention Area. Green except motions. All were denied the sell- The district court held this information 59(e) ers’ Rule motion that the broker’s peri- was not material because the state had paid in commission be addition to and not odically intermittently acquired land in $83,400.00 out judgment in favor of years, pure it was area for some 35 59(e). post- sellers. F.R.Civ.P. The court speculation any piece whether this or other poned hearing on this motion until a subse- property might ever be condemned. Al- quent parties date. Later the entered into though buyer argued at trial the agreement settlement in which the broker misrepresented that the land sellers had agreed $10,000.00 accept in full payment high dry and suitable for residen- hearing its claim for commission. After tial did not es- development, the evidence argument of counsel on the seller’s Rule represent- the land was not as tablish 59(e) motion, approved the settle- court ed. claim, ment broker’s dismissed the entering proceedings, broker from further About weeks before into the two granted by increasing the the sellers visited the Dis- agreement sellers’ motion sales 3,1973 gross in favor of sellers trict and discussed office on $10,000.00, concerning proper- agreed the amount settle- District’s intentions ty. visit by telephone This was followed sellers had several communications with the call one of the sellers to from the District. concerning plans District the District’s The sellers not disclose regard the infor- property. In one letter the mation received as a result the visit or might it indicated that need 70- telephone call to the buyer either property, obtaining 75% of the that after However, broker. court trial found the appraisals position nego- in a failure to disclose this information negotia- was not property, tiate for the and that if concealment a material fact justifying it might tions failed institute condemnation rescission because the sellers did not receive proceedings. The district found any definite as a information result the failure to disclose learned phone visit or the call. with the District af- from communications original contract but ter execution of the executing Before the contract *4 addenda was not a before execution of the physically inspected property the on two of the justifying rescission non-disclosure occasions. Neither the sellers nor the bro- sellers did learn contract because the not attempted ker to an independent forestall definitely planned to con- that the District inquiry into the character and circumstanc- two months after demn the until es surrounding fact, the property. the then, of the Until said execution addenda. encouraged the-buyer broker by to do so court, pure speculation the it was whether giving him the telephone number of the con- the would be condemned. A zoning local board suggesting and he by the on demnation suit was filed capable call it. buyer is a experi- and 24,1974 voluntarily dismissed June and businessman, unlikely enced rely blindly to by September the District in of 1975. on the representations. sellers’ learning prospective Upon condem- In the late summer of 1973 a title search buyer nation the sued rescission outstanding revealed an Vi6thinterest in the contract. The sellers and the broker coun- rights by mineral not owned the sellers. terclaimed. The district court found that Because the sellers not to would be able buyer the was not entitled to rescind. convey mineral rights, buyer all the threat- Judgment was in favor of sell- entered the ened attempted to rescind. The sellers to respective the their coun- ers and broker on $20,000.00 buyer return his deposit, but the It terclaims. is from 19, accept refused to On it. November appeals. the buyer 1973, buyer the sellers the executed an addenda the May to 3 contract which stated in order to Generally, establish that the parties disputed origi- whether the law, action under Florida cause of in fraud nal required contract the sellers to deliver (a) plaintiff that: de must establish the all rights mineral only the. or those mineral a false statement knowingly fendant made rights by owned the sellers. Under the fact; (b) concerning a the defend material addenda, the buyer to agreed forego his plaintiff rely on the ant intended that the possible right to return rescind statement; (c) plaintiff upon relied agreement sellers’ partition to institute a statement; plaintiff dam (d) acquire action to outstanding mineral See, for aged as a result of that reliance. rights. partition action was com- 609, 601, Ball, Ball 160 36 example, v. Fla. menced, August 1974 the sellers 172, (1948); So.2d 177 v. Gulf Life Sutton agreement reached an owners of Co., 693, 828, 692, Ins. 138 Fla. 189 829 So. outstanding rights purchase mineral to Estates, (1939); Temple Nixon v. Terrace By interest. the terms the addenda Inc., 397, 475, Fla. 121 97 So. 477 original contract otherwise remained (1929); 14 FlaJur. Fraud Deceit 9.§ effect, “in full force and unaltered and un- circumstances, Under certain an innocent modified.” fact, misrepresentation of a material relied detriment, Between the execution of the original on to another party’s grounds addenda, contract and execution of for rescission of a Robson Link & contract. 924 rely sellers’ buyer Co., 154 Fla. Wheeler & Leedy

v.Co. buyer v. did con- (1944); Langley representations, 533 and that 616, 18 So.2d Co., Fla. Development investigation 94 his own. duct Irons & an Land (1927). 771 This 1010, 1017, 114 So. Additionally, duty to an affirmative requirement knowl- exception to only if there is a in Florida disclose exists proven ap- to defraud edge and intent parties relationship between the fiduciary First, logical grounds. on two pears rest knowledge solely are within the facts false of a state- maker even an innocent trick has been representor or some profit at the be allowed ment should not independent inves an employed prevent Second, a party. expense an innocent v. Cha tigation representee. Ramel bound to a should not be party deceived Inc., Co., 135 So.2d sebrook Construction prove cannot simply because he contract pre Fraud (Fla.App.1962). is not false the statements were representor knew sumed; lies on the proof the burden of Co., supra, 18 Link & when made. Robson been defrauded. party claiming to have at 533. So.2d (Fla.1956). Quesnel, Barrett v. 90 So.2d case differ of the instant The facts principles of Florida law With these basic misrepresentation typical from the fraud or buyer’s assign mind, proceed we there were no cause of action because here ments of error. misrepresentations. Instead affirmative not disclose that The sellers did failed to dis claims sellers *5 property sold lies portion of the substantial concerning possible fu close material facts Swamp Flood Detention within the Green ture A non-disclosure of condemnation. may that fore well While name sound misrepre material fact as as an overt Area. show justifying boding, sentation can constitute fraud re the evidence at trial did not g. scission a contract. E. Robson Link & that within this area is flooded 532; Co., supra, residential, 18 at Hirschman v. So.2d com or otherwise unsuitable for Co., 517, Hodges, & Russell 59 O’Hara Fla. Property uses. mercial or other normal 527, 550, (1910); 51 14 554 Fla.Jur. So. subject is to con possibly within the area Fraud and Deceit 27. However the Su However, § by demnation the state. preme Florida has stated al Court of that covers Swamp Flood Detention Area Green though may of a material nondisclosure fact fifty miles. The state’s square more than relief, grounds be for area condemnation activities equally open facts

where the lie for than continuing been off and on more opportuni- equal vendor and vendee with specu matter It thus a three decades. is examination, ty of vendee and the under- piece of lation whether one himself, takes to examine for without may area ever condemned. within this relying upon statement, the vendor’s it is alleged A is material if but fact no evidence of fraud vendor misrepresentation or non-disclosure knew facts not known to the vendee not party would have entered complaining does not make them known him. g., Morris v. In into E. the transaction. 437, 1, 3 432, 18 Orman, graffia, Fla. So.2d Stephens 9, 10 154 (1862); v. Fla. 86-87 v. (1944); Insurance Co. see also Great American Hodges, Hirschman v. O’Hara & 29-30, 299, Co., 554; Suarez, 24, 109 So. 301 92 Fla. supra, Russell 51 at Robson So. of materiali Co., (1926). Link supra, & The Furthermore issue 18 So.2d 531. misrepre ty alleged record or buyer in this case that the of an non-disclosure indicates question of fact apparently equivalent appears and sellers to be a access sentation concerning Considering to the the tenu property, information under Florida law.1 fact, by Graham, Properties, question Biscayne but it cited Florida Inc. v. 65 is a Blvd. 858, proposi (Fla. 1953); Jurisprudence supporting So.2d 859 as such 14 Fla.Jur. Fraud Inc., materiality Biscayne Properties, in this tion. The Florida test for Deceit Blvd. § whether, only approached type the non-disclosure case this case is but for Florida which complaining party materiality misrepresentation, question, clearly does not state

925 speculative speculative. effect In view part ous determination, being land sold within the district partially the Green this factual Area, Swamp agree justified holding that amply Flood Detention we with the because district court’s determination information was not material of its not speculative information was material under nature. Florida law. his establish the non- efforts to material, buyer also claims infor as that the disclosed information mation which opinions received sellers as a result cites Florida hold several 3, 18, meeting pro and the pendency 1973 of condemnation telephone ceedings 1973 with the Dis at the time of execution a con conversation trict was which in title and is specific more a defect tract constitutes grounds was material and should have been dis rescission of contract. Long, closed. The district court found the Walton Land & Timber Co. v. 135 (1939); sellers received no definitive information as Fla. 185 So. 839 Westerlind v. Dehon, result meeting telephone (Fla.App.1976). and the 24 As 326 So.2d explained opinion, conversation infor judge and that therefore the in his these mation was apply not material. Under Florida not to the facts of the cases do in law, mere possibilities statements of stant because in of them do case each generally constitute false statements of ma condemnation action was filed before the 829; Sutton, terial supra, facts. 189 So. at execution contract. 610; Greenberg Berger, v. 46 So.2d finding After there had been (Fla.1950), Blount, v. Farnham 152 Fla. no misrepresentation or non-disclosure of (1942), So.2d 14 Fla.Jur. facts, court correctly material the district Fraud and Deceit 13. Similarly, a failure § applied equitable the doctrine of conversion to disclose possibilities mere be a cannot Enterprises, taught as the case of Arko

failure to disclose material facts. Wood, (Fla.App.1966). Inc. v. 185 So.2d 734 buyer argues that even if the equitable Under the doctrine of conversion *6 sellers had prior no definitive purchaser realty seized of becomes the original contract, to execution of the upon beneficial title to the execu information, they had such which should tion Id. at 736. of the contract of sale. disclosed, prior have been entering the The carries of loss before vendor the burden November 1973 addenda to the cont and the vendee execution contract ract.2 However the district court found carries the burden of loss execution of after that it was not until two months after the applied the contract. Arko doctrine of execution of the addenda that the equitable sellers that conversion and held condem learned the actually planned to ac nation of real after execution of quire the property through conveyance legal the contract and before and that before time possibility that the ground title not a rescission for and Certainly would not have entered into the da transaction. transaction. a modification to an Ingraffia, supra, 3; Morris v. existing 18 So.2d at Great new contract constitutes a contract. 7 Suarez, supra, American Co. v. Insurance 109 Although a § Fla.Jur. Contracts 169. contract Considering at So. 301. the modified, Florida test may general rule is be the that the jt ( materiality, is evident that it is the function original stays except contract in as modi- force weigh of the trier of fact to the evidence 459. No § fied. 17 Am.Jur.2d Flori- Contracts party determine whether the would have en-j da of whether a case has addressed the issue information) tered the transaction even if the party required occurring events to disclose had been disclosed. original after contract execution of an which subsequent anything if with have little to do Appellant buyer summarily concludes, with- Since we modification to the contract. supporting authority, out the addenda to gained determined that sellers the information the contract constituted new which contract original after execution of the contract was not required full disclosure of all material con- fact material, we this issue. need not decide cerning contract, original even facts those little, having anything, if to do with the adden-

926 within, day initially filed the motion the ten condem- was entitled buyer merely delayed Id. court place period. in of the land. at The district

nation award timely until it could ruling short of con- motion events actual Although proper argument may, in the circumstanc- hear of counsel. demnation rescission, es, the instant be grounds appealed correct. judgment The from was such events. record does not establish It is also asserts the district buyer AFFIRMED. subsequent considered the improperly suit. This dismissal of the condemnation dissenting: GODBOLD, Judge, Circuit It without merit. is clear from assertion is I reverse. would the district opinion the district court opin- read district court majority passing judge the dismissal in mentioned (1) Prior to execution of holding: as ion his considering in decision. without the “ad- original execution of contract and argues the dis Finally, buyer denda,” of condemnation possibility jurisdiction grant trict court lacked speculative and uncertain the land was so 59(e) to assess the bro sellers’ Rule motion to disclose that failure sellers against rather ker’s commission of a materi- possibility was concealment judg paid it to be from the requiring than fact; months (2) al It was not until two Originally ment of the sellers. in favor addenda, when after execution the sell district court entered sellers learned that the flood control $83,400.00 ers for and directed that proper- “definitely planned to condemn the $50,040.00 paid from broker’s commission be ty,” possibility of condemnation All parties amount. thereafter filed anything “pure speculation.” more than timely post-trial various All mo motions. notes, majority Florida opinion As the except tions were denied sellers’ Rule when,' representee matter if the is material 59(e) judge motion. The district directed: it, not have had been told of he would However, allega respect Ingraf entered into the contract. Morris v. tions 1 of the Harmon mo Paragraph fia, (Fla.1944). 3 18 So.2d 6, 1976, tion will filed October counsel be considering materiality, majority Tampa heard at on a motion to alter or opinion generalized first informa- looks at portion Opinion amend that history its tion the district and about Judgment 59(e), providing under Rule condemnation, particular in- at second such days a motion is filed within by the sellers between Clerk, formation obtained notice of Order as I prong, they con- 17. Each sitting ¿gain will Tampa from Feb *7 clude, level of materiali- ruary 14, not rise to the through March does 1977. May was original signed The contract ty. App. at 189. The district court found: 1973. direction, On the court’s the sellers refiled presented, the Har- From the evidence grant- motion which subsequently was executing mon to prior brothers knew ed. buyer argues The the district court a May 18, contract substantial lacked jurisdiction to hear be- the motion was portion of their within cause days more than ten had elapsed from Swamp and sub- Green Detention Area entry time of until the ject possible condemnation. to future sellers filed the motion for second time. required to call Obviously The a seller not Federal of re- Rules Civil Procedure gen- a quire buyer’s to the existence of judg- a motion to attention alter amend a do- of eminent days governmental power ment to be served later eral than ten majority that 59(e). agree after entry judgment. of main. I with the F.R.Civ.P. has The district that day enlarged by ten limit cannot be land in a water location of court. this 6(b). F.R.Civ.P. The not alone move power district court to condemn did did high enough not offend rules scale to reach up these as the sellers case sellers, Harmons, of materiality, history level nor did the visited the office They in the area over did not condemnation activities the flood district on they past up go three decades. But somewhere to talk football or because about possibility of condemnation in as ab- scale be- were interested condemnation an sufficiently that, high subject They if known interest. comes to stract intellectual seller, it, pursuit a he must reveal because it is were not information about in that, sense, good in general, fact all would cause the in land or overall condemnation putative buyer to to policies, any decline enter into the or of other irrelevant informa- transaction. There is magic They get no fact tion. went to information about subject particular that the unrevealed matter relates the extent to which the here land governmental to power to condemn. mean involved was below the annual flood where, subject No court would hesitate over a case elevation was therefore to con- for example, before a contract for the sale demnation the district. Let us look at is signed today, land the seller knows the record. papers to suit condemn the land have Clayton testified that Harmon before prepared signed been and will be filed May knowledge 18 he had no that the land ordinary buyer tomorrow. The does not subject possible suit,2 to condemnation a buy intend condemnation suit which with had no contact the flood control dis- frustrations, brings with delays, expense, it and in fact had never trict3 heard of the fees, attorney the risk of not receiving district.4 He testified he “disclaim[ed] award, fair possibility plans and the any [prior knowledge about the 18] or development use must changed District and about thé fact District size, because of alterations in contour or might acquiring be interested in prop- this accessibility of land.1 erty.” (A.43). placed only He his first and up

What moves case the scale trip occurring to the district as office after materiality satisfies is not the generalized plaintiff signed the contract with kind of that the (A.85). district court nature conversation that majority and the describe but the they activities exactly occurred was “To see where during May the sellers planned which dem- putting on this flood control area.” they possibility (A.87). onstrate that' considered the person with whom [the highly material. The map dis- talked showed them Harmons] inexplicably gentle, trict court was and this included some of the involved in silent, inexplicably litigation about what oc- and showed them curve curred. The district (A.87). court found that the expertise Persons inside information or A. No. may buy anticipation profiting effect, from con- To same see A.90-91. demnation, but there is no evidence that the plaintiff buyer. was such a 3. A.43: you Had contact with South- Q.

2. A.42: Management west Florida Water right you All sir. At Q. the time that 18th, prior May on or 1973? your contract, brother executed that No, my knowledge. A. none you any knowledge that the land was subject possible ato condemnation suit? A.83: A. None whatsoever. *8 words, May In other no time before Q. # * * * * * you any had with discussions A.84-85: anybody with SFWMD that connected Forgive repetitive, ifme it’s Q. but on the date might possibly this condemned? land be May 18, 1973, you when entered into the A. No. Hauben, you contract with Mr. didn’t have any property possi- notice that this would 4. A.43: bly by be condemned SFWMD? right. entity— you All that Had heard of Q. A. No. SFWMD, we’ll call it the or if we You knowledge didn’t have notice Q. 18th, might May 1973? —on might any way that SFWMD inbe interest- A. No. property? ined Attachment curve on the showing you that Q. And map they that were contem- meant map of was a sketch memo Attached condemning plating it? including that property the Harmons’ Right. A. question in this case. why asked the land Clayton A.87. Harmon Mann, the testimony, James A. In oral condemned, being person with was district, explained that director (A.87-88). they explained whom talked physical is the elevation mean annual flood that, before Robert testified Harmon of the district’s jurisdiction to the limit possible knowledge he had no With his recollec- development authority. condemnation,5 possible nothing knew about memorandum, May 7 tion refreshed trip made to the flood control6 and no (A.51): Mann testified only He that his district office.7 testified refresh Q. the memorandum And does May 18 to the office was after visit subject mat- to the your memory as (A.93). you ter of conversation following memo Plaintiff introduced had on occasion? the Harmons from the files of district: about Yes. memorandum talks A. they which discussed MEMORANDUM partially DIRECTOR, me at time which was WATSON, ROBERT TO: Swamp REAL ESTATE DIVISION Detention in the Flood Green FEASTER, Area, THROUGH: DONALD Basins part R. of the Four River ACTING EXECUTIVE DIRECTOR Project which Florida Flood Control MANN, A. FROM: JAMES ACTING active construction District is DIRECTOR, WATER RESOURCES along Corps Engineers. with the DIVISION Mr. Watson requesting And I’m SUBJECT: THE HARMON BROTHERS/ in touch with the Har- get he GREEN FDA SWAMP ac- mon brothers to discuss our land Clayton Robert were in the Harmon quisition property, intentions of their Thursday, May office their 3rd to discuss partially which with- I indicated acreage (see par- attached which is map) And in the Area. Flood Detention tially Swamp within the Green FDA. they also I wished to indicated you kindly get-in-touch Would with them close-paren develop paren residential acquisition to discuss land our intentions their to sell or to sell properties They for their within the FDA. interests; and that development develop (residential) proper- wish to their the men my had asked office and ty development or sell to interests. working for me to who had been They have asked for a determination make of the mean a determination holdings. the mean annual flood on their prop- on their annual flood elevation Malcolm will determining Johnson be erties. and it will forwarded letter about two weeks hence. And I indicated that we JAM:lr on the forwarding that sir, anything A. No I know 5. A.46: didn’t about it. time of ... At the the sale of this land Q. 7. A.47: Hauben, you to Mr. did not tell him about any possible you proper- your testimony condemnation of this It’s did not make Q. ty, you? trip to Brooksville before this contract anything signed May A. I didn’t know it. about 1973? No sir. A. 6. A.46—47: your testimony? That’s Q. *9 you anything [plaintiff] And did tell him Q. Yes sir. A. possible about flood control? documentary them In view of the elevations to within about evidence and flood described, I testimony weeks’ time. the have two oral And later he testified further the contract. dated events that occurred before the A letter from Mann to Q. A. Withlacoochee River near Eva Road 33 sea level. The mean annual flood occurs ble condemnation is of sufficient concern to logical Survey Gaging Station on the An analysis ^[*] ty of And quisition discussed with the land purposes. nection Yes, mean annual flood 22May is approximately in I believe that acquisition ^[*] discussing with It said: of intentions, was District sheds additional the data ^[*] our flood detention area for water acquiring what two ^[*] there was in con- Clayton state 110 feet mean Mr. Harmons? (A.53): ^[*] shows signing U.S. at State possibili- light land Harmon May storage ^[*] Geo- land ac- on of flood elevation and thus the power flood elevation. The location of the mean Assume focus The matter can be cause the information signed, said to they the risk of condemnation to be within and learned later before the addenda was But it found that what It the Harmons’ district rejected Harmons probative 18. It is did visit the district office upon to condemn land was not plaintiff: flood control district that has the their the uncertain nature could ¡earned on force of obvious testimony. sufficiently testimony hardly accept “This pointed up before May 18 the what they to be that they up land is partially And it did not. they and found that material. This “definitive” to scope Harmons had to the mean learned significant. considered as credible on did before of of ignores May possi- then, what way. on average every years. of 2.33 Rec- began negotiating us since we with ords have been collected this station you we visited district office to analysis appears since 1958. From it inquire possibility about both con- that about 90% of the as out- possible scope demnation and con- map un- lined on attached telephone demnation and were contact during der water the mean annual flood. yesterday to learn when the information phone, you by As indicated to Mr. Robert forthcoming. will be We have been shown Watson the Southwest Florida Water map describing parts of our land District, Management Real Estate Divi- contemplated condemnation. We sion, be in you will contact with in the should hear from district in days a few near future. description precise with more of it.”9 I Telephone company records disclosed that think the would have said: “If it’s there a long-distance important sellers, had been call from the I to the think that I Haven, Florida, Harmons’ office in Winter says.” will wait and see what Brooksville, to the district’s office in significance Flori- If there is doubt da, on May day May 18, one before the contract what the Harmons before learned that, signed.8 Mann dispelled by testified in such a fact that at trial telephone call on May learning anything Harmon would and denied the denied have understood that gave knowledge Watson would be events that rise to their (Harmon) touch him “to part. possibility discuss the of con- Concealment of demnation, possibility acquiring pursuit all or infor- more firm parts holdings of the land which he original- concerning possibility, and the mation ly discussed with me in the office on all illuminated pursuit, concealment 3rd.” by the incredible and non-credible efforts to making phone 8. Robert Harmon denied that come in his the call shown office make calls. (A.46). attempted explain it on records people” the basis there were “a lot in his Or, conveyed person people assume a office who could have it and third made other plaintiff. same information to *10 was None of this revealed trial, condemnation. up materiality add to it at conceal Formal motion condem- May plaintiff. to the before July to Harmons given nation was 22 are evidence further Events after days plaintiff notified and a few later possibility of the significance rea- he rescinded. For the Harmons that Harmons’ activi- and the condemna- not stated in record sons learned before ties and of what September 1974. suit dismissed tion was 12, 1973, after the con- September 18. On signed and before addenda tract was case on failure to reveal I find no Florida (November 18), pur- a broker signed was In possibility of condemnation. the known represent the Harmons called the porting to (3d Anton, D.C.A. Hermes v. 300 So.2d losing was a protested that he district and negotiated with Fla., 1976), the owner (to property of the Harmons deal to sell them, telling to plaintiffs property to lease rep- persons plaintiff) because a other than ,planned to it condemn them that the state (Watson or an- resentative of the district Actually a and a half. year year in a a told his clients that person) other had already had filed. been condemnation suit acquire property. to district intended per at year Plaintiffs for a $400 leased He for threatened to sue district loss month, repairs, in and made and moved $50,000 a checked commission. The district had to move out when after two months drawing and had preliminary found that belonged property now to notified completed showing approximately been sued fraud in the in- state. Plaintiffs for 65% of the land would taken. Harmons’ judge granted trial summa- ducement. The The told broker informed of was ry judgment ground the owner on the for acquisition depended upon legisla- plaintiffs state's actual notice had appropriations year. tive in the next Ap- intent to condemn. The Court Civil get angry broker became threatened to peals genuine was reversed because there a injunction an his against interference with owner, issue of fact whether material attorney sale. The for the Harmons called had signed, the time the lease was notice of the district and was told that to 70% 75% of Thus, taking. 47.10 the date Id. at needed, Harmons’ suit critical issue was not whether had been negotiate pur- the district would misrepre- owner instituted but whether the might failing chase and file condemna- materi- sented a fact known to her that was tion proceedings around March 1974. The expectancy of al to the leasee’s reasonable suggested might district that the Harmons occupancy prop- enjoying the use be willing purchase price. a state simi- Here erty. there concealment On attorney October 5 the for the Har- different, lar, material though asking mons wrote exactly the district what expectancy con- plaintiff’s to the reasonable part of the Harmons’ land district cerning property. planning on acquiring, and when. None of Lucas, (Or. Musgrave v. 238 P.2d 780 In events plaintiff, these were revealed to al- 1951), gravel opera- the seller of a sand and though obviously the even facts moved a next river received tion on land up materiality. further the scale of On warning Department the War to dis- from November 18 plaintiff signed the addenda. removing gravel sand and because continue replied December the the at- might the river. torney’s letter, sending it alter the course of legal descriptions warning. and stating hoped revealing sold ap- it seller without praisals non- completed shortly. Oregon Supreme In The held the received Court January 1974 the district wrote the Har- for relief based disclosure sufficient basis approving fraud, mons that was upon saying: $20,000 Fla., (3d jury punitive remand ed award. 346 So.2d 1205 D.C.A. On awarded damages 1977). judge for fraud and the trial remitted $1,800. appeal down to On the court reinstat- *11 giving mere Manifestly, such no- is, itself,

tice to defendants a highly Whether,

important and material fact. truth, the conduct of their business actually change

would the channel of the

river, law, or otherwise be in violation of

is not the material consideration as re-

spects the matter now under discussion. pertinent thing is that defendants

had been litigation threatened with of a nature, by

serious a responsible official of government.

the federal Obviously, in

selling the business plaintiffs, good demanded,

faith positive it was the

duty of make, defendants to a full disclo-

sure of these facts.

Id. at 785-86. reyerse

I would the district court. The

most critical point is that neither the dis-

trict court nor this court given has effect to did,

what the Harmons as circumstantial end,

evidence materiality. In the what speaks much louder than what people

other said to them. REAL

AMERICAN ESTATE INSTI-

TUTE, INC., Plaintiff-Appellant,

ALABAMA REAL ESTATE COMMIS-

SION, public corporation, al., et

Defendants-Appellees.

No. 78-2545

Summary Calendar.* Appeals,

United States Court of Ment, Ala., Fifth Circuit. Ira Montgomery, De plaintiff-appellant. Nov. Smith, Bowman, Thagard, & Crook Cul- Jr.,

pepper, Thagard, W. Thomas David R. Williams, Ala., Boyd, Montgomery, Spurrier Rice, Williams, Huntsville, & George K. Ala., defendants-appellees.

* Fed.R.App.P. 34(a); 5th Cir. R. 18.