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Schmidt v. Firriolo

District Court of Appeal of Florida, Fourth District
Jun 1, 1994
634 So. 2d 283 (Fla. Dist. Ct. App. 1994)

Opinion

No. 92-1329.

March 30, 1994. Rehearing Denied June 1, 1994.

Appeal from the Circuit Court, Broward County, Patti Englander Henning, J.

Ronald P. Gossett, Gossett Gossett, P.A., Hollywood, for appellants.

Lewis J. Levey, Semet, Lickstein, Morgenstern, Berger, Fried, Brooke Gordon, P.A., for appellees Joseph and Stella Firriolo.


REVERSED. We agree with appellants that the trial court erred in dismissing with prejudice appellants' action for fraud. Without considering the legal sufficiency of appellants' allegations, the trial court determined that no action for fraud was available to a seller in a real estate transaction where the parties had entered into a contract for sale. We disagree.

An action for fraud may arise out of a variety of factual settings, including real estate transactions, and, if the claimant can successfully demonstrate fraud in the inducement, the transaction will be vitiated and damages awarded for fraud. Cf. Walker v. Galt, 171 F.2d 613 (5th Cir. 1948), cert. denied, 336 U.S. 925, 69 S.Ct. 656, 93 L.Ed. 1086 (1949). We reject the claim of appellees that the case of Frank Silvestri, Inc. v. Hilltop Developers, Inc., 418 So.2d 1201 (Fla. 5th DCA 1982), holds that no cause of action for fraud can arise out of a real estate transaction.

We do not pass on the sufficiency of the appellants' allegations of fraud because that issue was not raised in the trial court. Our reversal is without prejudice to the rights of the parties to litigate that issue.

ANSTEAD and KLEIN, JJ., concur.

OWEN, WILLIAM C., Jr., Senior Judge, dissents without opinion.


Summaries of

Schmidt v. Firriolo

District Court of Appeal of Florida, Fourth District
Jun 1, 1994
634 So. 2d 283 (Fla. Dist. Ct. App. 1994)
Case details for

Schmidt v. Firriolo

Case Details

Full title:MARIAN SCHMIDT AND DORIS SCHMIDT, APPELLANTS, v. JOSEPH FIRRIOLO AND…

Court:District Court of Appeal of Florida, Fourth District

Date published: Jun 1, 1994

Citations

634 So. 2d 283 (Fla. Dist. Ct. App. 1994)