DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

CHARLES M. SAGE and RIKI SAGE,

Appellants,

v.

SARVENAZ PAHLAVI, individually and as Trustee of the

SARVENAZ PAHLAVI LIVING TRUST U/A/D JUNE 10, 2015,

Appellee.

No. 4D22-1566

[March 15, 2023]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Scott R. Kerner, Judge; L.T. Case No. 50-2021-CA-000118-

XXXX-MB.

Gary J. Nagle of the Law Office of Gary J. Nagle, Juno Beach, for 

appellants.

George P. Ord of Murphy Reid, L.L.P., Palm Beach Gardens, for 

appellee.

DAMOORGIAN, J.

Charles Sage and Riki Sage (“Buyers”) appeal the final summary 

judgment entered in favor of Sarvenaz Pahlavi, individually and as Trustee 

of the Sarvenaz Pahlavi Living Trust U/A/D June 10, 2015 (“Seller”), 

in the underlying breach of real estate contract and failure to disclose

action. Buyers raise several issues on appeal. We affirm on all issues and 

write only to address Buyers’ argument that Seller failed to adequately 

disclose the existence of a foundation settling issue.

The following undisputed material facts are pertinent to our analysis. 

Seller and Buyers entered into an “AS-IS” Residential Contract for the Sale 

and Purchase of a condominium unit. As part of the transaction, Seller 

completed a property disclosure form wherein Seller checked the “yes” box 

to the following relevant questions:

(i) Is any portion of the Association’s property located seaward 

of the coastal construction control line?
2

(j) Does any past or present settling, soil movement, or 

sinkhole(s) affect any portion of the Association’s property?

. . . .

(l) Has any additional structural reinforcement been added to 

any portion of the Association’s property?

The property disclosure form also contained the following question and 

response from Seller:

(o) If any answer to questions 7(a)-7(n) is yes, please explain: 

there is an assessment, part of which I paid.

Both Seller and Buyers signed the property disclosure form.

Before the closing date, Buyers obtained their own inspection of the 

condominium which revealed the following: (1) “[e]xterior front wall by 

entry door has significant cracks in the concrete from apparent 

settlement—recommend elastomeric caulking repair by building 

maintenance for the condo association;” (2) “[t]here were visible 

shrinkage/settlement cracks on the exterior walls that should be 

addressed with elastomeric caulking by the Condo Maintenance;” and 

(3) “[t]here were minimal cracks in the flooring and walls of the interior of 

the unit.”

After the sale was completed, Buyers sued for breach of contract and 

failure to disclose, arguing Seller “failed to disclose the existence of a 

foundation settling problem affecting the condominium building” and 

failed to disclose that there were “latent and material defects that 

materially affected the value of the real property.” They also argued Seller 

was aware of the defective conditions and was “required to disclose the 

defect as a matter of law” under Johnson v. Davis, 480 So. 2d 625 

(Fla. 1985).1 Buyers later admitted during their depositions that they did 

not read or “pay attention” to the property disclosure form which they 

signed and did not read their own inspection report.

1 In Johnson v. Davis, the Florida Supreme Court recognized a cause of action for 

fraudulent nondisclosure with real estate transactions, holding that “where 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. This duty is equally applicable to all forms of 

real property, new and used.” Id. at 629. 
3

Seller moved for summary judgment, arguing she disclosed the defect 

which was the subject of Buyers’ claim. Furthermore, Seller argued 

Buyers’ own inspection report, which Buyers ignored, also disclosed the 

alleged defect. Buyers filed a response to Seller’s motion and a crossmotion for summary judgment in which they argued Seller’s disclosure 

was inadequate. Following a hearing on the parties’ motions, the trial 

court entered final summary judgment in favor of Seller, concluding 

Buyers “were sufficiently informed that a settling condition existed at the 

Condominium Property and that [Buyers] did not rely on [Seller’s] 

disclosures in purchasing the Condominium Unit.” This appeal follows.

As the final judgment in this case was entered after the summary 

judgment standard was amended, the new standard applies. See In re 

Amends. to Fla. R. Civ. P. 1.510, 317 So. 3d 72, 77 (Fla. 2021) (stating “the 

new rule must govern the adjudication of any summary judgment motion 

decided on or after that date, including in pending cases”). 

Under the amended rule, summary judgment is appropriate 

where there is no genuine dispute as to any material fact and 

the movant is entitled to judgment as a matter of law. In 

applying the amended rule, the correct test for the existence 

of a genuine factual dispute is whether the evidence is such 

that a reasonable jury could return a verdict for the 

nonmoving party.

Lloyd S. Meisels, P.A. v. Dobrofsky, 341 So. 3d 1131, 1134 (Fla. 4th DCA 

2022) (internal citations and quotation marks omitted).

“A nondisclosure claim under Johnson has four elements: (1) the seller 

of a home must have knowledge of a defect in the property, (2) the defect 

must materially affect the value of the property, (3) the defect must be not 

readily observable and must be unknown to the buyer, and (4) the buyer 

must establish that the seller failed to disclose the defect to the buyer.” 

Jensen v. Bailey, 76 So. 3d 980, 983 (Fla. 2d DCA 2011).

Here, the property disclosure form notified Buyers that a “portion of the 

Association’s property” was “located seaward of the coastal construction 

control line,” that there was “past or present settling, soil movement, or 

sinkhole” that affected a portion of the Association’s property, and that 

“additional structural reinforcement” had been added to a portion of the 

Association’s property. The form further disclosed that Seller paid an 

assessment relating to those issues. Moreover, Buyers also obtained their 

own inspection report which disclosed, in part, that cracks were visible on 

the exterior and interior walls “from apparent settlement.” The property 
4

disclosure form, in conjunction with the inspection report, more than 

sufficiently put Buyers on notice of the foundation settling issue, thereby 

triggering Buyers’ duty to further investigate the information provided to 

them by Seller. See Nelson v. Wiggs, 699 So. 2d 258, 260–61 (Fla. 3d DCA 

1997) (reiterating that “a buyer would be required to investigate any 

information furnished by the seller that a reasonable person in the buyer’s 

position would investigate” and “take reasonable steps to ascertain the 

material facts relating to the property and to discover them—if, of course, 

they are reasonably ascertainable”). However, rather than inquiring into 

the disclosed possible foundation settling issue, Buyers took no action. 

In fact, Buyers did not even read the property disclosure form or the 

inspection report. Any reasonable due diligence on Buyers’ part would 

have revealed essential and specific facts into the condominium’s

foundation settling problems prior to the purchase.

Under these circumstances, no actionable claim exists for 

nondisclosure under Johnson as a matter of law. See Lorber v. Passick, 

327 So. 3d 297, 303 (Fla. 4th DCA 2021) (because buyer’s nondisclosure 

claim was “not premised upon any misrepresentation, the failure of Buyer 

to exercise adequate diligent attention would be fatal to his claim”); see 

also Pressman v. Wolf, 732 So. 2d 356, 360–62 (Fla. 3d DCA 1999) (buyer’s 

misrepresentation claim, which was premised on seller’s failure to disclose 

known defects, was barred under Johnson because “the home’s defects 

were readily observable and/or within the buyer’s ability to know or easily 

discover”), disapproved of on other grounds in M/I Schottenstein Homes, 

Inc. v. Azam, 813 So. 2d 91 (Fla. 2002); Wasser v. Sasoni, 652 So. 2d 411, 

412 (Fla. 3d DCA 1995) (“[A] misrepresentation is not actionable where its 

truth might have been discovered by the exercise of ordinary diligence.”).

Affirmed.

GROSS and KUNTZ, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.