IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

SOPHIA DZIEGIELEWSKI,

Appellant,

v. Case No. 5D22-157

LT Case No. 2020-CA-41058-X

BONNIE SCALERO, SANDRA L. 

POSER, AND SUPREME TITLE 

CLOSINGS, LLC,

Appellees.

________________________________/

Opinion filed December 9, 2022

Appeal from the Circuit Court 

for Brevard County,

Curt Jacobus, Judge.

Allan P. Whitehead, and Erika 

McBryde of Frese, Whitehead, 

Anderson & Henderson, P.A., 

Melbourne, for Appellant.

W. Nathan Meloon, and Scott 

Widerman of Widerman Malek, P.L., 

Melbourne, for Appellee.

EVANDER, J.
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Sophia Dziegielewski (“Buyer”) appeals an order dismissing, with 

prejudice, her claims against Bonnie Scalero (“Scalero”) for fraudulent 

inducement and negligent misrepresentation. We reverse for two reasons. 

First, Buyer’s amended complaint sufficiently stated a cause of action against 

Scalero on both of the claims. Second, the trial court abused its discretion in 

denying Buyer’s request for leave to amend. 

Appellate courts review an order granting a motion to dismiss de novo. 

Milnar v. United Parcel Serv., Inc., 186 So. 3d 997, 1004 (Fla. 2016). Review 

is confined to the four corners of the complaint. Id. The allegations set forth 

in the complaint must be assumed to be true and all reasonable inferences 

arising therefrom are taken in favor of the plaintiff. Id. Accordingly, for 

purposes of this appeal, we accept the well-pled allegations of the amended 

complaint to constitute the facts of this case.

In September 2019, Sandra Poser (“Seller”) listed her condominium 

unit for sale through Scalero, her real estate agent. The Multiple Listing 

Service (“MLS”) listing for the property contained the following representation 

about the number of garage spaces associated with the unit: “Not one or two, 

but three deeded garages come with this unit, so bring your beach toys and 

collectable cars.” Shortly after posting the MLS listing, Scalero was notified 
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that the condominium association (“Association”) maintained that the unit 

came with the exclusive right to use one, not three, garage spaces. A sale of 

the unit fell through after the potential buyer was provided with an Association 

estoppel letter stating that only one garage space was attached or 

appurtenant to the condominium unit. Scalero was further advised of a 

lawsuit involving the use of the garages within the condominium complex and 

she was warned that her continued representations as to the garage spaces 

being included in the sale of the condominium unit were false and would 

cause legal issues to any potential purchaser. 

In January 2020, Buyer became interested in the condominium unit, in 

part, because of the MLS listing’s statement that the unit came with three 

garage spaces. During a tour of the condominium, Buyer asked Scalero 

whether the sale included the purchase and exclusive use of the three garage 

spaces. Scalero responded in the affirmative.

After initial negotiations, Seller presented Buyer with a proposed 

purchase contract. Upon reviewing the contract, Buyer noticed the following 

provision related to the number of garage spaces: 

20. ADDITIONAL TERMS: Seller is the rightful owner of 

unit #301, together with garages 19-A, 9-A, and 11-A, as 

evidenced by deeds recorded in Brevard County Clerk of Court. 

Due to deficient and missing documents dating back to when 

the condominium was developed in 1978 the Seller can only 

guarantee title to unit #301 and garage #19-A.
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Concerned about this provision, Buyer again asked Scalero whether the sale 

of the condominium unit included the purchase and exclusive use of three 

garage spaces. Scalero again responded affirmatively and explained that 

access to the three garage spaces was listed in the Condominium Rider to 

the contract (“Condo Rider”), which stated:

8. COMMON ELEMENTS; PARKING:

The Property includes the unit being purchased and an 

undivided interest in the common elements and appurtenant 

common elements of the condominium, as specified in the 

Declaration. Seller’s right and interest in or to the use of the 

following parking space(s), garage, and other areas are included 

in the sale of the Property and shall be assigned to Buyer at 

Closing, subject to the Declaration: 

Parking Space(s) # ____ Garage # 19A Other: 9A and 11A

Based on this provision, Scalero told Buyer there was no need for concern 

about the number of garage spaces included in the unit.1

 

During the closing, Buyer was again advised that her purchase 

included the exclusive right to use all three garage spaces. However, the day 

after the closing, Association notified Buyer that she only had the exclusive 

right to use one garage space. In addition, Association told Buyer that it had 

1 The Condo Rider also contained the following provision: “3(d). Litigation: 

Seller represents that Seller is not aware of pending or anticipated litigation 

affecting the Property or the common elements, if any, except as follows: 

[left blank].”
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previously sent an estoppel letter to Seller, Scalero, and the closing agent 

reciting that “the only garage space that could be conveyed with the subject 

property was garage space 19-A.” This estoppel letter was not provided to 

Buyer before the closing.

Buyer subsequently learned that two prior contracts on the property 

failed to close because the prospective buyers “discovered that the unit did 

not convey with three garages.” Buyer would not have purchased the subject 

property at the contract price if she had known that she was only receiving 

the exclusive use to one garage space. 

Buyer filed suit against Scalero, Seller, and the closing agent. The trial 

court later dismissed the counts against Scalero, finding that “there is no 

cause of action against Ms. Scalero.” On appeal, Buyer first argues that the 

amended complaint stated a cause of action for both fraudulent inducement 

and negligent misrepresentation. 

There are four elements of fraudulent inducement and fraudulent 

misrepresentation: “(1) a false statement concerning a material fact; (2) the 

representor’s knowledge that the representation is false; (3) an intention that 

the representation induced another to act on it; and (4) consequent injury by 

the party acting in reliance on the representation.” Butler v. Yusem, 44 So. 

3d 102, 105 (Fla. 2010) (citing Johnson v. Davis, 480 So. 2d 625, 627 (Fla. 
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1985); Moriber v. Dreiling, 194 So. 3d 369, 373 (recognizing elements apply 

to both fraudulent inducement and fraudulent misrepresentation).

The elements of a negligent misrepresentation claim are somewhat 

different:

[I]n order to allege a viable cause of action or negligent 

misrepresentation a plaintiff must allege in his complaint that: (1) 

the defendant made a misrepresentation of material fact that he 

believed to be true but which was in fact false; (2) the defendant 

was negligent in making the statement because he should have 

known the representation was false; (3) the defendant intended 

to induce the plaintiff to rely on the misrepresentation; and (4) 

injury resulted to the plaintiff acting in justifiable reliance upon the 

misrepresentation. 

Simon v. Celebration Co., 883 So. 2d 826, 832 (Fla. 5th DCA 2004). After 

reviewing the detailed allegations of the amended complaint, we conclude 

that each of the elements in both counts brought against Scalero were 

sufficiently alleged. 

Scalero’s primary argument in support of the trial court’s order was that 

paragraph #20 of the purchase contract, which was attached to the amended 

complaint, contradicts Scalero’s alleged false statements that Buyer would be 

receiving exclusive use of three garage spaces. Thus, Scalero argues “there 

can be no fraud where the issue alleged to be fraud was disclosed.” 

Specifically, Scalero relies on the language that “Seller can only guarantee 

title to unit #301 and garage #19-A.” We reject Seller’s argument. First, 
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paragraph #8 of the Condo Rider expressly recites that garage spaces #19-

A, #9-A, and #11-A were included in the sale of the condominium unit.

Second, when asked to clarify any potential discrepancy between paragraph 

#20 of the contract and paragraph #8 of the Condo Rider, Scalero 

affirmatively represented that Buyer would receive exclusive use of three 

garage spaces. Third, Scalero’s argument that she had “disclosed” the 

garage space “issue” is undermined by her failure to disclose Association’s 

position that Seller could not convey the exclusive right to the use of three 

garage spaces. Fourth, paragraph #20 references “guaranteeing title” to only 

one garage space when, according to Buyer, what is at stake is exclusive 

right to use three garage spaces, not outright title to those spaces. 

The other arguments raised by Scalero in support of the trial court’s 

order are either without merit or require us to look outside the four corners of 

the complaint. Accordingly, we conclude that the trial court erred in granting 

Scalero’s motion to dismiss.

Buyer also argues that the trial court abused its discretion in denying 

her request for an additional opportunity to amend the complaint. Because 

Buyer desires to make additional claims against Scalero, this issue is not 

rendered moot by our determination that the two counts brought against 

Scalero should not have been dismissed.
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As a general rule, refusal to allow amendment constitutes an abuse of 

discretion unless it appears that the privilege to amend has been abused, 

amendment would prejudice the opposing party, or amendment would be 

futile. Gate Lands Co. v. Old Ponte Vedra Beach Condo., 715 So. 2d 1132, 

1135 (Fla. 5th DCA 1998). 

Here, the record reflects that Buyer has not abused the amendment 

privilege. See Dimick v. Ray, 774 So. 2d 830, 833 (Fla. 4th DCA 2000) 

(holding one prior amendment to complaint is not an abuse of amendment 

process); Adams v. Knabb Turpentine Co., 435 So. 2d 944, 946 (Fla. 1st DCA 

1983) (“In the instant case, appellants clearly have not abused the 

amendment privilege, having filed only the original complaint and one 

amendment.”); Highlands Cnty. Sch. Bd. v. K.D. Hedin Constr., Inc., 382 So. 

2d 90, 91 (Fla. 2d DCA 1980) (holding one prior amendment to complaint is 

not abuse of amendment process).

Furthermore, there is nothing in the record to show that Scalero would 

be prejudiced by allowing Buyer to amend. Indeed, as observed by Buyer, 

Scalero has not even filed an answer to the amended complaint yet.

Finally, there has been no showing that amendment would be futile. 

For example, Buyer argued both below and on appeal that she wishes to 

include a count against Scalero based on Scalero’s alleged violation of her 
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duties under Chapter 475, Florida Statutes (2020). This court has previously 

held that Chapter 475 authorizes a private cause of action against a real 

estate broker for violation of statutory duties when the broker allegedly

engaged in fraudulent concealment in conjunction with the sale of residential 

real property. See Smith v. Rodriguez, 269 So. 3d 645, 647 (Fla. 5th DCA 

2019). 

Thus, we conclude that the trial court abused its discretion in denying 

Buyer’s request for leave to amend.

REVERSED and REMANDED.

LAMBERT, C.J., and WALLIS, J., concur.