IN THE DISTRICT COURT OF APPEAL FIFTH DISTRICT STATE OF FLORIDA

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1 E-Copy Received Nov 1, :46 AM IN THE DISTRICT COURT OF APPEAL FIFTH DISTRICT STATE OF FLORIDA LOUIS HOCEVAR and LILIANA KURPANIK, vs. Appellants, Case No.: SDI L.T. Case No.: CAO BARBARA J. MORONEY and NEILL J. MORONEY as co-trustees of the ESTATE OF ROBERT MORONEY and BARBARA J. MORONEY, Appellees. APPELLEES' ANSWER BRIEF November 1, 2013 LINDELL & FARSON, P.A. D. Brad Hughes, Esq San Jose Blvd., Suite 126 Jacksonville, Florida FIa. Bar Number Telephone (904) Facsimile (904) Nude 1.1 Ian.;ou.com Attorney for Appellees

2 TABLE OF CONTENTS Table of Authorities.3 II. Designation of Parties and Citations to the Record... 4 III. Preliminary Statement and Procedural History... 4 IV. Statement of the Facts and Case...5 V. Summary of Argument VI. Argument A. Standard of Review...22 B. Argument...23 The Final Judgment is NOT Contrary to the Controlling Law and IS Supported by Competent Substantial Evidence VII. Conclusion and Request for Relief VIII. Certificate of Type Style and Point Size...32 IX. Certificate of Service... 33

3 I. TABLE OF AUTHORITIES Bessett y. Basnett, 389 So.2d 995 (Fia. 1980)...25 Butler y. Yusem, 44 So.3d 102 (FIa. 2010)...30 Casamassina y. United States Life Ins. Co., 958 So.2d 1093 (Fia. 4" DCA 2007)...25 Gutter y. Wunker, 631 So. 2d 1117 (FIa. 4th DCA 1994) Hinton y. Brooks, 820 So.2d 325 (Fia. 5th DCA 2001) Jensen y. Bailey, 76 So.3d 980 (Fia. 2d DCA 2011)... 7, 8, 28 Johnson y. Davis, 480 So.2d 625 (Ha. 1985)... 24, 28, 29, 30 Levy y. Creative Construction Se/Tices qf Broward, Inc., 566 So.2d 347 (Fia. 3dDCA 1990)...28 Nelson y. Wiggs, 699 So.2d 258 (Fia. 3d DCA 1997)...27 Nicholson y. Kellin, 48i So.2d 931 (Fia. 5th DCA 1985) Pressman y. Wolf, 732 So.2d 356 (Fia. 3d DCA 1999) Rayner y. Wise Rea/tv Co., 504 So.2d 1361 (Fia. ist DCA 1987)...29 SCG Harbourwood, LLC y. Hamivan, 93 So.3d 1197 (Fia. 2nd DCA 2012) Slitor i'. Elias, 544 So.2d 255 (Fia. 2d DCA 1989)...25, 27 Soloranzo y. First Union Mortgage Corporation, 896 So.2d 847 (Fia. 4th DCA2005)...28 Spitale y Smith, 721 So.2d 341 (Fia. 2d DCA 1998) Syvrud y. Today Real Estate, Inc., 858 So.2d i 125 (Fia. 2d DCA 2003)

4 Wilson y. State, 952 So.2d 564 (Fia. fu DCA 2007). 23 II. DESIGNATION OF THE PARTIES AND CITATIONS TO THE RECORD Any reference to the Parties or citations to the Record will be made in the same manner as described in Appellants' Initial Brief. However, citations to the transcript from the hearing on Motion for Rehearing, occurring on March 20, 2012 (R. VIII at 901) will be (Rehearing Tr.) followed by the transcript volume and page numbers. III. PRELIMINARY STATEMENT AND PROCEDURAL HISTORY The Appellees filed their initial complaint on December 7, 2007 and the case proceeded to a bench trial on the Appellees' Second Amended Complaint, filed on November 13, The Second Amended Complaint alleged four causes of action: Count I Breach of Contract, Count II Fraudulent Non-Disclosure, Count III Fraudulent Misrepresentation, and Count IV Foreclosure of Purchase Money Equitable Lien. On January 22, 2010, the Court entered an Order on Defendants' Motion to Dismiss and Order Severing Count IV of Second Amended Complaint. On February 9, 2010, Appellants filed an Answer and Affirmative Defenses to Counts I-III of the Second Amended Complaint. On October 19, 2010 through October 21, 2010 the trial court heard testimony at a bench trial on Counts I-III of the 4

5 Second Amended Complaint. Closing Arguments were heard by the Court on November 5, The trial court rendered Final Judgment on February 22, 2012 and Appellants filed a Motion for New Trial on March 5, The trial court heard Appellants' Motion for New Trial on March 20, 2012 and entered an Order denying the Appellants' Motion for New Trial on April 2, Both the Final Judgment and the Order Denying Motion for New Trial were appealed by the Appellants' filing of a Notice of Appeal on May 1, The Appellees did not file a cross-appeal or otherwise appeal any portion of the Final Judgment. IV. STATEMENT OF THE FACTS AND CASE A. In troduction The Appellees file this Statement of the Facts and Case to correct certain misstatement of facts in the Appellants' Statement of the Facts and Case and to inform the Court of the competent substantial evidence which supports the Final Judgment. B. Relevant Findings of Fact Contained in The Final Judgment The trial court specifically stated that in considering the weight to be given to the testimony of each witness, it considered the demeanor while testifying, the frankness or lack thereof, the intelligence of the witness, any interest the witness might have in the outcome of the case, the means and )

6 opportunity to know the facts about which the witness testified and the reasonableness of the testimony in light of all the evidence considered. (R. V. at 762) After the Appellants vacated the premises the Appellees initiated occupancy of the property and discovered water intrusion. (R. V. at 762) The trial cour further found: Eilt was apparent from the testimony and the evidence that there was substantial and ongoing water intrusion and water damage in the master bedroom. Considering the nature and amount of water damage, this Court concludes the Sellers knew of the water damage prior to selling the home to the Purchasers and/or to turning possaession of the property over to the Purchasers. It is also apparent that the Sellers did not disclose the substantial water intrusion and water damage and that the Sellers actively misrepresented the extent of any water intrusion that was discovered by the Purchaser's [sic] home inspector. (R. V. at (emphasis added)) The Court also found: The Sellers misrepresented their knowledge of damage in the garage closet and in the master bedroom, that such misrepresentation was done with the intent to induce the Purchasers to buy, and that the Purchasers relied upon the misrepresentation. Additionally, this Court finds the Sellers failed to disclose substantial damage to the home, which they had knowledge of but that the Purchasers did not have knowledge of, 6

7 (R. V. at 764) and that such non disclosures materially affected the valued of the home. Furthermore, the Court finds that the Sellers breached the contract by failing to make agreed upon repairs. The Court noted that the Buyers were seeking $259, for damages relating to the hiring of John Ruggeri, general contractor, $23, for relocation expenses during construction and $11, for mold remediation work. (R. V. at 768) After adjusting for work the Court found was "beyond that necessary to correct water and mold damage and for those areas which were clearly observable or discoverable by the Plaintiffs [Buyers] prior to their purchase..." the Court found the Buyers "entitled to $11, for mold remediation work, $8, for temporary relocation expenses associated with the remediation and construction and $139, as damages to correct water intrusion issues." (R. V. at 768) The Court then reduced that amount by $33,000.00, which the Buyers received from their homeowners insurance, for a total amount of $126, (R. V. at 768) C. The Hearing on Appellants' Motion for New Triai In the hearing on Appellants' Motion for New Trial, the Appellants' counsel and the Judge engaged in a discussion regarding the Jensen case and the standard the Court applied in its Final Judgment. In this dialogue the 7

8 Court provided a further explanation to the standard it applied in arriving at its findings of fact. The dialogue was as follows: Mr. Glass: Judge, would you give me a minute just to rebut what Mr. Hughes said? The Court: Okay. About? Mr. Glass: Well, he brought up an argument, and you'll see it in the Jensen case, where I talked about the Nvstrom case. The Court looked at two cases provided by the purchaser on this "should have known" language. The Court: Okay. I think---look, if the point is what the standard is, okay, the real question I have for my---the real issue you're raising is whether I'm determining it under the "should have known" or the known standard, okay. And what you've argued is that, you know, even though I put in language saying they knew, you're saying in the testimony is that they should have known support that basically what you're saying the evidence is? Mr. Glass: Right. Yeah, basically they should have known about it because of what Mr. Ruggeri said. The Court: Right. And I don't know that I agree with that, but I understand your argument. Mr. Glass: Yea. The Court: And I understand Jensen and I'm not- --I don't believe this is a Nystrom or a Revitz case, if that what you're trying-if that's what you want to make sure that I'm aware of Mr. Glass: Right. 8

9 The Court: I believe the standard is should have known, but I also agree that you can get there by inference and circumstantial evidence or direct evidence of knowledge. Mr. Glass: Right. In all three of these cases I cited there was some evidence in the past that was never disclosed. The Court: That's why I said I wanted to read the cases and I told you I'd get it out in about tendays, because I do want to go back and read the case cites. Mr. Hughes: Your Honor, just to clear something up. I think you said I believe the standard is should have known. Did you mean to say--- The Court: No, the standard is known. Mr. Hughes: Thank you. The Court: And I'm sorry if I said that. I was trying to say the standard is not the "should have known;" although, they use that language in those two cases, but those two cases are specific because they deal with people who actually were doing something. Okay. And even though in this case that we're talking about your client actually did a little bit, okay. Remember he did some attempt to repair the doors? Mr. Glass: Right. (Rehearing Tr. Pgs 35-36, Lns 20-9) Mr. Glass: You say, Furthermore, this Court finds that the sellers breached the contract by

10 failing to make agreed upon repairs. I just want to add into this that there was no evidence that the repairs were never done. In fact, the only evidence was that they were done. Mr. Moroney never checked, he never asked an inspector to check. And my clients paid Carl Romano to do a repair and he testified he did a repair. So I didn't see how there was evidence to dispute they did not make any repairs. The only evidence is that they did. Unless you just don't believe my clients. The Court: Candidly, I did not believe that the door was repaired. (Rehearing Tr. Pg 40, Lns 14-24) D. The Garage Closet Nook/Living Room) (JSi Floor and Directly Below Kitchen Danny Pritchard (Amerispec Inspector) testified that he noticed staining in the top of the garage closet at the joist but that he was unable to test the area with a moisture meter because the garage closet was filled with stuff (Tr. IV Pg 533 Lns 5-22) Danny Pritchard further testified that he suggested the Buyers inquire of the Sellers of their knowledge of the staining. (Tr. IV Pg 533 Lns 5-22) Robert Moroney testified that he asked Mr. Hocevar about this stain and Mr. Hocevar stated "basically he knew of no water intrusion whatsoever, he didn't know why it was that [sic]." (Tr. I Pg 39 Lns 12-15) Mr. Hocevar corroborated Mr. Moroney's testimony by stating: lo

11 And Mr. Moroney saw those, too, and he said, What is that discoloration? And 1 said, You know, that's been there since I bought the stuff, and I moved in here and I've checked it all the time and it's never changed color or never changed anything. And he knew about it and I knew about it and I said--so I never replaced it. (Tr. V Pg 683 Lns 19-25) Mr. Moroney further testified that the garage closet was so full of junk that you couldn't see the back wall and that the garage closet was still full of stuff after closing. (Tr. I Pg 40 Lns 12-17) Mr. Moroney testified that when the junk was removed from the closet that there was staining throughout the garage closet and he testified that the photographs introduced as Plaintiffs' Exhibit 7 accurately depicted the closet when the junk was removed. (Tr. I Pg 42 Lns & Pgs Lns 9-5) Mr. Ruggeri (Buyers' Expert Witness and Licensed General Contractor) testified "[t]he garage closet had pegboard on it, and there was a lot of water stains and it smelled of mold. And I don't think the mold people had gotten down there yet to do their remediation, and it was pretty bad." (Tr. III Pg 291 Lns 15-18) He further testified that "you could see all the staining and the mold growing on the-you could see it on the ground-i saw it coming from the top all the way down. So it was-it was stained and molded and you could smell it. It was pretty bad." (Tr. III Pg 292 Lns 6-10)

12 Mr. Ruggeri stated he had to replace floor joists running east to west because of the damage in the garage closet. (Tr. III Pg 296 Lns 3-18) Mr. Ruggeri testified he had to remove most of the exterior wall across the whole ocean side of the house because of the damage in the garage closet. (Tr. III Pgs Lns 4-4) This necessitated replacing the back deck. (Tr. III Pgs Lns 24-19) Additionally, Mr. Ruucxeri testified that phase 1 of the contract was demolition and that the entirety of phase i of the contract was necessary because of the garage closet. (Tr. Ill Pg 302 Lns & Pg 304 Lns7-ll) E. The Kitchen Nook/Living Room (Second Floor Directly Above Garage Closet) Mr. Hocevar testified that all sliding glass doors either leak or allow moisture to enter. (Tr. V Pgs Lns 7-8) There are ocean front sliding glass doors relevant to this case in the living room/great room and the master bedroom. Mr. Hocevar testified as follows in regards to lifting the carpet to dry it and spray it with Lysol when it became wet: Q: All right. Now, at any point in time---at any point in time did you indicate that you had removed or lifted the carpet in any area of the house to retreat it, soak it up with water and things of that nature? A: I never removed carpet. I have pulled up probably an inch or two of the lip of the carpet 12

13 along the sliding glass doors when I noticed small amounts of moisture to make sure there was no deterioration underneath them. Q: Okay. And did you soak that water up? A: Yes. Q: Did you spray it with Lysol? A: Yes. Q: Okay. And what room of the house did you do that in? A: Definitely in the living room and perhaps the master bedroom once or twice over the years I lived there, 12 years. (Tr. V Pgs Lns 15-7) Mr. Hocevar also testified that he and his wife were out of town during 2006 and 2007 about 12 weeks a year. (Tr. V Pg 643 Lns 13-20) During the time the Hocevars were out of town they would have a house sitter watch the house but they never told her that the sliding glass doors leaked. (Tr. V Lns 23-6) However, Mrs. Moroney testified that neither one of the Hocevars ever told her that they would lift the carpet [at the sliding glass doors], soak up water and spray with Lysol. (Tr. II Pgs Lns 22-1) When Mr. Hocevar was asked questions about a floor lamp he admitted the floor lamp was in the southeast corner of the great room. (Tr. V Pg 693 Lns 15-19) Mrs. Moroney testified that there was rust staining on '3

14 the carpet from the lamp and that the subfloor and tacking strips were deteriorated. (Tr. II Pgs Lns 25-23) Instead of admitting the staining on the carpet was from the floor lamp, Mr. Hocevar suggested the staining was kitty poop. (Tr. V Pg 694 Lns 9-17) Mrs. Moroney testified, while viewing Pl. Ex. 13, that she also found rust staining in the kitchen nook (which was directly next to where the lamp stood) and that the staining was directly below a wrought iron stand that was left by the Hocevars as part of the sale of the home. She also stated that the legs farthest away from the sliding glass door did not stain the linoleum. (Tr. Il Pgs Lns 9-14) Mr. Ruggeri testified that the garage closet with the pegboard and the rotten wood was directly under the area where the floor lamp stood. (Tr. III Pgs Lns 20-8) Lisa Rowell (Buyers' Environmental Consultant) observed the living room carpet before it was removed and found discoloration on the carpet padding, wood subfloor and heavy water damage on the carpet tack strips. (Tr. III Pg 434 Lns 15-23) Lisa Rowell also identified the breakfast nook as being directly above the garage closet and found high elevations of moisture (sometimes as high as 100%) on the exterior wall and microbrial growth in the wall cavity. (Tr. III Pg 437 Lns 7-25) 14

15 Mr. Hocevar never told the Moroneys about the long term leaking and/or moisture intrusion into the living room through the sliding glass doors. (Tr. V Pgs Lns 15-1) Mr. Moroney testified that he would have never bought the property if he would have known about the damage prior to closing. (Tr. I Pg 66 Lns 2-7) Mr. Ruggeri testified that every sliding glass door on an oceanfront house does have to leak. (Tr. III Pg 324 Lns 23-25) Mr. Sones (Sellers' Expert Licensed General Contractor) also testified that every sliding glass door on an oceanfront house does not have to leak. (Tr. IV Pg 627 Lns 5-IO) Mrs. Moroney testified that after Mr. Ruggeri's repairs, the sliding glass doors did not leak. (Tr. II Pg 163 Lns 16- F. The Qffice/Guest Bedroom (Split Level on West Side of Home Below the Master Bath room) Mrs. Moroney testified that the on the Northwest side of the home there was substantial staining and deterioration that could be seen on the carpet, where it was covered with furniture, on the carpet pad and the subfloor. She identified photos 15 A, B, C and D as being pictures of this damage. (Vol. II Pg 178 Lns 1-25) Mrs. Moroney testified that the Hocevars never told her about the staining depicted in composite exhibit 15 despite the fact that the furniture that covered the stains was taken by the Hocevars

16 when they moved out. (Vol. II Pg 179 Lns 13-23) Mr. Hocevar testified that a filing cabinet is what sat over the stained carpet depicted in composite exhibit 15. (Tr. V Pg 697 Lns 15-17) Lastly, Mr. Ruggeri testified that the damage in the guest bedroom was where the electrical meter was, which was rusted out and had to be replaced. He stated they had to remove about 10 feet of the north comer and build a block wall. (Tr. III Pg 313 Lns 12-20) G. The Master Bath room (Tin rd Floor above the Office/Guest Bec! room) Mr. Hocevar testified that as a condition to purchase he received a list of ten items that required repair. The repair priorities (Plaintiffs' Exhibit 3) (hereinafter the "Repair List") identified certain step numbers that corresponded with the Amerispec Inspection Report (hereinafter "Inspection Report") and the pages of the Inspection Report that corresponded with the step numbers on the repair priority list. (Tr. V Lns 4-17) The first two items on the repair list dealt with the master shower and/or master bathroom. The first repair priority, Step 2672, states "[mioisture issue master bedroom". The second repair priority, step , states "master shower". When viewing the portions of the Inspection Report (Pl. Ex. 2) received by Mr. Hocevar, the following damage was identified as needing to be repaired as a condition of closing: I6

17 Shower Surround: Ceramic tile. Suggest caulking/regrouting as a regular maintenance procedure. REPAIRS RECOMMENDED. Front wall below window shows movement. This is an indication of water intrusion into the substrate. Recommend review/repair as needed Carl Romano was hired by the Hocevars but he is not a licensed contractor. (Tr. II Pg. 262 Lns 16-22) Mr. Romano was hired by the Hocevars to "do more tile work for them." (Tr. II Pg 265 Lns 8-li) According to Mr. Romano, Mrs. Kurpanik had stated that the problem was that the tile was off the wall like it was before. (Tr. Il Pg 265 Lns 18-21) Mr. Romano testified that the Hocevars never provided him with a copy of the Repair List or told him the repairs were being completed in accordance with any inspection report. (Tr. Il Pg 273 Lns 1-13) Furthermore, Mr. Romano testified that the Hocevars never told him that the wall moved and that if they would have told him that he "would have told them to get a contractor... [and] that they needed to gut the wall out". (Tr. II Pgs Lns 18-16) Mr. Romano further elaborated as follows: Q: If you had been shown that prior to making repairs, would you have done anything different than what you did? A: 1f I would have been shown this? Q: Correct. '7

18 A: I probably would have walked away from it. I would have told them to get a contractor in or gutted the wall out. If the wall was moving, I wouldn't have touched it. Objection by Mr. Glass, speculation. But you think that-when you say, Gutted the wall out, what do you mean by that? A: Gutting the whole tile wall. If the wall was moving you need to get behind it. (Tr. II Pg 274 Lns 5-22) Mr. Ruggeri testified that the water intrusion identified in Step was not repaired and he believed it was coming from an exterior window and was the result of "years of damage because it rotted down, all the way downstairs." (Tr. III Pg 316 Lns 4-22) The Court took particular interest of this and asked the following question: The Court: What you're telling me is that the damage that you're looking at here you don't think is from the shower-what I call the shower head or behind the shower head in the pipe, what's back there, you're telling me it's probably an exterior leak that's going down in the wall? Witness: Yes. (Tr. III Pg 317 Lns 2-8) To repair the damage identified in Step , Mr. Ruggeri testified that "[wie had to rip the whole wall out and the shower pan and everything. We had to rip that wall out and below." (Tr. III Pg 319 Lns 13-18) Mr. 18

19 Ruggeri further testified that they ended up ripping out about feet because of the damage identified in Step (Tr. III Pg 319 Lns 21-24) He also testified that he had to repair about percent of the front side (west side) of the house because of the damages identified in Step (Tr. III Pgs Lns 17-14) Additionally, the scope of the whole project required installation of impact windows and changing out of GFI's and electrical to be code compliant. (Tr. III Pg 322 Lns 3-17) H. The Master Bedroom (Third Floor) As stated in Section G above, Mr. Hocevar received a Repair List and the corresponding portions of the Inspection Report as a condition of closing. In addition to being required to repair Step , he was required to repair Step By reviewing the corresponding portion of the Inspection Report (Pl. Ex. 2), the following damage was identified to Mr. Hocevar as needing to be repaired as a condition of closing: 2672 Floors: REPAIRS ARE RECOMMENDED. Floor at left side of sliding door in master bedroom is wet. Recommend review/repair as needed. Unable to determine source of moisture. The inspector, Danny Pritchard, testified that the carpet by the sliding glass door made a sloshing sound when he walked on it and that it was saturated with water. (Tr. IV Pg 531 Lns 4-11) Danny Pritchard also '9

20 testified that he asked the sellers about the wet carpet but they said they didn't know anything about the wet carpet. (Tr. IV Pg 532 Lns 18-21) Mr. Moroney testified that he asked Mr. Hocevar if he knew what the source of the water intrusion was and the response was "[h]e said he didn't know, but he said occasionally, he says, you're going to get some water intrusion once in a while, you're on the ocean." (Tr. I Pg 31 Lns 9-15) The Inspection Report indicated that Danny Pritchard was unable to determine the source of the water intrusion. (Pl. Ex. 2) Mrs. Moroney testified, in reviewing Pl. Ex. 12, that photographs which depicted furniture in the master bedroom, which was far away from the sliding glass door, was stained by water. (Tr. II Pg 153 Lns 9-25) Mr. Hocevar expressly agreed to make the repairs to the undetermined source of water intrusion into the master bedroom. (Tr. V Pgs Lns 24-l) However, Mr. Hocevar never took any steps to determine the source of water intrusion into the master bedroom. (Tr. V Pg 669 Lns 25-6) Instead, he merely caulked the framing around the sliding glass door and where the wood step-in touched the deck. (Tr. V Pg 668 Lns 14-24) Mr. Sones (the Hocevar's expert witness) testified about the master bedroom sliding glass doors as follows: 20

21 Q: Okay. In this particular case, was the-what was the source of the water intrusion in the sliding- --around the sliding glass doors? A: I don't think that there was---i don't think that I've read anything that says what the actual source was. Q: Is that important? A: Is it important what the source was? Q: Correct. A: For the remedial repair it would be important. (Tr. IV Pg 601 Lns 3-13) In addition to Mr. Sones' testimony regarding the alleged repairs, Mr. Ruggeri testified that that the caulking was not an adequate repair to the water intrusion in the master bedroom. (Tr. III Pgs Lns 16-17) V. SUMMARY OF ARGUMENT The Final Judgment is not contrary to the law and is supported by competent substantial evidence. The Hocevars agreed to make repairs to the master bathroom and master bedroom. Instead, the Hocevars hired a handyman to make repairs without telling him the extent of the damages needed to be repaired. Additionally, the Hocevars merely caulked around the sliding glass door in the master bedroom instead of determining the cause of the water intrusion and hiring a licensed professional to make 2!

22 repairs. John Ruggeri testified that the necessary repairs identified in the Inspection Report, relating to the master bathroom and master bedroom, were not repaired. The competent substantial evidence demonstrates that the Hocevars knew of facts which materially affected the value of the property, which were unknown to the Moroneys, and that the Hocevars failed to disclose such facts. There is direct and circumstantial evidence to support the trial court's findings of fact. The court explained its reasoning in the hearing on Motion for New Trial and expressly stated that it did not base its decision on a "should have known" burden but instead based its decision on direct and circumstantial evidence. The competent substantial evidence demonstrates that the Hocevars fraudulently misrepresented their knowledge of the damage in the garage closet and in the master bedroom. There is direct and circumstantial evidence to support the trial court's findings of fact. Upon direct inquiry, regarding the cause of the water in the master bedroom and the stains in the garage closet Mr. Hocevar fraudulently stated that he did not know the cause of water or the stains. VI. ARGUMENT A. Standard of Review. 22

23 The Appellees disagree with the Appellants' assertion that the appropriate standard of review is de novo. The Appellants essentially disagree with the trial court's findings of fact and therefore the correct standard of review is whether there is competent substantial evidence to support the factual findings. Wilson y. State, 952 So.2d 564, 571 (Fia. S DCA 2007) B. Argument. 1. The Final Judgment is NOT Contrary to the Controlling Law and IS Supported by Competent Substantial Evidence a. Breach of Contract (Count I) To prevail on a claim for breach of contract, the Plaintiff must prove there was an offer, acceptance and consideration. SCG Harbourwood, LLC y. Hanyan, 93 So.3d 1197, 1200 (FIa. 2 DCA 2012). It is undisputed that the Hocevars agreed to make repairs to master bathroom to repair the moving wall. It is also undisputed that the Hocevars agreed to repair the unknown source of water intrusion into the master bedroom. John Ruggeri testified that neither of these repairs was made. Carl Romano testified that he was hired to replace some tiles in the bathroom but was never provided a copy of the Repair List or corresponding pages of the Inspection Report, and was never told that "wall showed 23

24 movement". Carl Romano further testified that if he would have been told this information he would not have done the work and he would have told the Hocevars to hire a contractor. Mr. Hocevar testified that he did not take any steps to determine the cause of the unknown source of water intrusion into the master bedroom but instead just caulked around the frame of the sliding glass door. property are: b. Fraudulent Non-Disclosure (Count II) The elements of a claim of fraudulent non-disclosure of residential [W]here the seller of a home knows of facts materially affecting the value of the property which are not readily observable and are not known to the buyer, the seller is under a duty to disclose them to the buyer. Johnson y. Davis, 480 So.2d 625, 629 (FIa. 1985) The Apellees agree with the Appellants that Johnson y. Davis restricted the notion of caveat emptor by creating a duty requiring the sellers of residential real property to disclose facts materially affecting the value of property which are not readily observable to the buyers. The Appellees also agree with the Appellants that "a recipient may rely on the truth of a representation, even though its falsity could have been ascertained had he made an investigation, unless he knows the representation to be false or its 24

25 falsity is obvious to him." Bessett i'. Basnett, 389 So.2d 995, 998 (Fia. 1980). Knowledge can be established by direct evidence or circumstantial evidence. Slitor y. Elias, 544 So.2d 255, 256 (Fla. 2d DCA 1989); see also, Casamassina y. United States Life Ins. Co., 958 So.2d 1093, 1101 (Fla. 4Eh DCA 2007) ("[K]nowledge and belief case... usually turn on the axis of the circumstances surrounding the complete transaction, including circumstantial evidence of intent and knowledge.") The trial court made an express finding that the Sellers knew of water damage and water intrusion and did not disclose the same, but also found that the Sellers misrepresented the extent of any water intrusion that was discovered. The facts identified in this brief provide competent substantial evidence supporting the Court's finding that the Plaintiffs had knowledge of the substantial water intrusion, which include but are not limited to: 1) Mr. Hocevar testified that all oceanfront sliding glass doors leak but he did not disclose that the sliding glass doors in this house leaked to the Moroneys; 2) Mr. Ruggeri testified that all oceanfront sliding glass doors do NOT leak; 3) Mr. Hocevar testified that they were out of town frequently (about a quarter of the year in 2006) and that a house sitter watched the house, but Mr. Hocevar did not tell the house sitter that all ocean front sliding glass doors 25