Opinion
No. 4D10–1127.
2011-09-14
Mark A. MATUSICK and BP & G of West Palm Beach, LLC, Appellants, v. Patrick J. DiSALVO, PB Plaza, LLC, Phoenix Realty Advisors, Inc., Peter J. Crane, Cohen Commercial Realty, Inc., Bryan Stanley Cohen, Jonathan D. Moss, Appellees.
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; David E. French, Judge; L.T. Case No. 2009CA037487XXXXMB.D. Bruce Kratz of Jeck, Harris, Raynor & Jones, P.A., Juno Beach, for appellants. John P. Joy and Sara M. Sandler of Walton Lantaff Schroeder & Carson LLP, Fort Lauderdale, for appellees Peter J. Crane, Cohen Commercial Realty and Bryan Stanley Cohen.
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; David E. French, Judge; L.T. Case No. 2009CA037487XXXXMB.D. Bruce Kratz of Jeck, Harris, Raynor & Jones, P.A., Juno Beach, for appellants. John P. Joy and Sara M. Sandler of Walton Lantaff Schroeder & Carson LLP, Fort Lauderdale, for appellees Peter J. Crane, Cohen Commercial Realty and Bryan Stanley Cohen. Michael Cristoforo and Joseph Bilotta of Vassallo, Bilotta, Friedman & Davis, West Palm Beach, for appellees Patrick J. DiSalvo, PB Plaza, LLC, Phoenix Realty Advisors, Inc. and Jonathan D. Moss.
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); Benn 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.