ARLINGTON PEBBLE CREEK, 

LLC,

Appellant,

v.

CAMPUS EDGE 

CONDOMINIUM 

ASSOCIATION, INC., a Florida 

non-profit corporation,

Appellee.

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO 

FILE MOTION FOR REHEARING AND 

DISPOSITION THEREOF IF FILED

CASE NO. 1D16-1347

_____________________________/

ARLINGTON PROPERTIES, 

INC.,

Appellant,

v.

CAMPUS EDGE 

CONDOMINIUM 

ASSOCIATION, INC.,

Appellee.

CASE NO. 1D16-1423

_____________________________/

Opinion filed November 6, 2017.
2

An appeal from the Circuit Court for Alachua County.

Toby S. Monaco, Judge.

Mark A. Boyle, Molly Chafe Brockmeyer, and Alexander L. Brockmeyer of Boyle 

& Leonard, P.A., Fort Myers, for Appellant Arlington Pebble Creek, LLC.

Hinda Klein and Brian Lee Ellison of Conroy Simberg, Hollywood; Jeffrey M. 

Paskert and Dara L. Dawson of Mills Paskert Divers, P.A., Tampa, for Appellant

Arlington Properties, Inc.

Jefferson M. Braswell of Scruggs & Carmichael, P.A., Gainesville, for Appellee.

BILBREY, J.

Appellants, Arlington Properties, Inc., and Arlington Pebble Creek, LLC,

appeal the final judgment in favor of Campus Edge Condominium Association, 

entered after denial of Appellants’ motions for directed verdict and based upon the 

jury’s verdict and award of damages. “A directed verdict is proper when the 

evidence and all inferences from the evidence, considered in the light most 

favorable to the non-moving party, support the movant’s case as a matter of law 

and there is no evidence to rebut it.” Wald v. Grainger, 64 So. 3d 1201, 1205 (Fla. 

2011). An appellate court reviews an order on a motion for directed verdict de 

novo. Kopel v. Kopel, --- So. 3d ---, 42 Fla. L. Weekly S26, 2017 WL 372074 

(Fla. Jan. 26, 2017); Christensen v. Bowen, 140 So. 3d 498 (Fla. 2014); HoffmannLaRoche Inc. v. Mason, 27 So. 3d 75 (Fla. 1st DCA 2009). Here, the evidence and 

inferences from the evidence do not establish proof of all the elements of 
3

fraudulent misrepresentation or negligent misrepresentation, even when viewed in 

a light most favorable to the Association. Therefore, the final judgment is reversed

and the trial court is directed to enter judgment in favor of the Appellants. 

Arlington Properties, Inc., purchased an existing apartment complex in 

January 2006, for the purpose of converting the facilities to condominium 

ownership under chapter 718, Florida Statutes. Upon this purchase, Arlington 

Pebble Creek, LLC, was created to conduct the conversion, including creation and 

initial management of the Association. See § 718.111, Fla. Stat. In December 

2008, Arlington Pebble Creek relinquished management and control of the 

Association to the unit owners. See § 718.301, Fla. Stat. 

The original complaint was filed by the Association on January 6, 2012, 

after extensive water intrusion damage to common areas of the condominium 

property was discovered. Necessary repairs to the common areas required the 

Association to increase, and for some years double or more, the assessments upon 

its members in order to preserve the utility and value of both the common areas 

and the individual condominium units. The Association sought damages from both 

Arlington Properties and Arlington Pebble Creek, asserting that the developer and 

the managing company knew of the water intrusion problems but neglected to fully 

cure the situation, turned over to the Association responsibility for upkeep and 

repairs knowing that damage to the buildings was ongoing, and knew the 
4

Association would incur substantial expense to preserve the integrity and safety of 

the common areas. Based on the factual allegations in its Fourth Amended 

Complaint, and after clarification by counsel and the trial court as the litigation 

progressed, the Association proceeded on causes of action for fraudulent 

misrepresentation and negligent misrepresentation.

1

 

As the Florida Supreme Court has stated, a party seeking to establish 

fraudulent misrepresentation is required to prove the following elements:

(1) a false statement concerning a material fact; (2) the representor's 

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

representation induce 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) (quoting Johnson v. Davis, 480 

So. 2d 625, 627 (Fla. 1985)). To establish negligent misrepresentation, a party is 

required to prove: (1) a misrepresentation of material fact that the defendant 

believed to be true but which was in fact false; (2) that defendant should have 

 

1 The Association’s count alleging a violation of section 718.616, Florida Statutes,

based on allegations of Arlington Pebble Creek not fulfilling its statutory 

obligation of disclosure upon conversion of the apartment complex into a 

residential condominium had been dismissed by the time the case was tried. 

Counsel for the Association also clearly represented to the trial court, and in the 

Association’s brief in this court, that the Association was not proceeding under a 

buyer’s cause of action for fraudulent nondisclosure as provided in Johnson v. 

Davis, 480 So. 2d 625 (Fla. 1985), since the Association was not a buyer, the 

individual unit owners were. During the discussion of jury instructions and the 

parameters of closing arguments after the close of evidence, the trial court ruled 

that the Association was proceeding on “a fraudulent and negligent 

misrepresentation claim, not a fraudulent nondisclosure case.” The Association 

did not object and does not challenge that ruling here. 
5

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

plaintiff to rely on the misrepresentation; and (4) the plaintiff acted in justifiable 

reliance upon the misrepresentation, resulting in injury. See Specialty Marine & 

Industrial Supplies, Inc. v. Venus, 66 So. 3d 306, 309 (Fla. 1st DCA 2011). 

The first elements of both causes of action require false statements of 

material fact. The Association admitted into evidence Arlington Properties’ 

Facility Evaluation Report from December 2005. This report was prepared as 

required by section 718.616, Florida Statutes, when converting an apartment 

complex to a residential condominium. The report stated an estimated remaining 

useful life of the structures of 35 to 45 years and described the functional 

soundness of the structures as “Good (localized deterioration).” In addition, the 

Association presented Arlington Pebble Creek’s budget for Association 

maintenance for 2008 (the year immediately prior to turnover of Association 

management), showing less than $10,000 expended for building repairs. 

To prove the falsity of the Facility Evaluation Report and the maintenance 

budget, and to prove the defendants’ knowledge of such falsity (for the fraudulent 

misrepresentation count) or that they should have known of the falsity (for the 

negligent misrepresentation count), the Association admitted into evidence a 

second engineering report, the Property Condition Assessment. Arlington 

Properties had obtained the Property Condition Assessment around the time of the 
6

Facility Evaluation Report in December 2005 as it prepared to purchase the then 

apartment complex. The Property Condition Assessment was not filed with the 

State of Florida or otherwise published to third parties. It described moisture 

intrusion affecting the exterior balconies including columns, handrails, concrete 

decks, and balcony ceilings. The Property Condition Assessment included the 

engineers’ estimate that at the time of that report water damage to the buildings 

required repairs to the “Structure/Building envelope” costing approximately 

$290,200.00. According to the Association, the falsity of the 2008 budget was 

that it gave no hint that costly repairs were needed immediately and that 

extraordinary Association assessments were required in order to preserve the 

common areas. 

The jury therefore had evidence to support the first and second elements of 

the fraudulent and negligent misrepresentation causes of action. However, the 

Association failed to present any evidence to prove the third and fourth elements 

for both fraudulent and negligent misrepresentation.2

 No evidence of any intent of 

Arlington Properties or Arlington Pebble Creek to induce reliance by the 

 

2 Although there may have been misrepresentations made to individual unit owners 

which were intended to induce them into purchasing their units, the trial court 

correctly held that it was necessary for the Association to prove that the Appellants 

intended to induce reliance by the Association and that the Association was injured

acting in reliance on the misrepresentation. The Association does not dispute this 

on appeal and in fact states in its answer brief, “[t]his case is about fraudulent 

misrepresentations made directly to the Association in Association meetings.” 
7

Association was presented. In addition, the Association failed to present any 

evidence that it actually relied on the statutory report or any pre-transfer 

Association budgets, and failed to present any evidence that the damages it sought 

resulted from its action or inaction attributed to any reliance. 

The testimony of Dorothy Benson, a unit owner since 2007 and Association 

president at the time of trial, did not describe any action the board took at the time 

of transfer or thereafter in reliance on any statement by either defendant. She 

never testified that the transfer of Association control to the unit owners was 

contingent upon any representation by either defendant. No one representing the 

Association asserted that the transfer deviated from any provision of section 

718.301, Florida Statutes. Likewise, upon transfer of the Association in December 

2008, the first post-transfer property manager, Jeff Sausaman, testified that he 

prepared the budgets for the Association for 2009 and years thereafter based on his 

experience and with some knowledge of the Association’s budget for 2008. But 

Mr. Sausaman had not seen Arlington Properties’ 2005 statutory property 

condition report, and thus could not have relied on it, until after the litigation was 

commenced in 2012. 

The lack of evidence of either defendants’ intent to induce reliance and the 

failure to show any actual reliance by the Association via any action or change in 

the Association’s position was argued extensively in the defendants’ motions for 
8

directed verdict at the conclusion of the Association’s presentation of evidence. 

The issue of failure of proof was thus preserved for appellate review. The trial 

court specifically inquired of counsel what the Association would have done 

differently had the Association known of the water intrusion problems earlier in 

time. Other than preparing post-transfer budgets with higher projections for repair 

expenses, charging unit owners with higher assessments earlier, and perhaps 

undertaking repairs sooner, there was simply no evidence that the costs of repairs 

eventually incurred was a consequence of any reliance by the Association upon 

any false statement made to the Association, either fraudulently or negligently, by 

either of the defendants.

3

Because the record on appeal fails to contain proof of the third and fourth 

elements of both fraudulent misrepresentation and negligent misrepresentation, the 

jury’s verdict, and the final judgment based thereon, are not supported by evidence 

in the record. Accordingly, the final judgment is REVERSED with directions for 

entry of judgment in favor of Appellants. 

LEWIS and ROBERTS, JJ., CONCUR.

 

3 There was no evidence that the Association suffered additional damages by any 

delay in repairs. Additionally, although the extent of reliance necessary to prove 

fraudulent misrepresentation and negligent misrepresentation differ, here there was 

no proof of any reliance to satisfy either cause of action. See Specialty Marine, 66 

So. 3d at 310-11. Contrary to one of the Association’s arguments, the existence of 

a fraudulent statement does not in itself establish reliance on that statement — to 

so hold would eliminate the third and fourth elements of the cause of action 

required by Butler.