In short: Real evidence of what the defect cost you. A buyer suing a Florida seller or agent for not disclosing a defect must prove damages, and photographs plus the buyer’s own account of the problem may not be enough. In Landin v. Maginley, a Pinellas County buyer sued over a walled-off fireplace and chimney, rested her case after two witnesses, and lost on directed verdict. The Second District affirmed on March 8, 2024, without a written opinion.
The Facts
Michelle D. Landin bought a home from Marilyn Maginley. Years earlier the seller had walled in a fireplace. After closing, Ms. Landin opened the wall and, according to her, found a deteriorated fireplace and chimney that had to be removed. She sued the seller for nondisclosure under Johnson v. Davis, and sued the listing agent and brokerage, Century 21 Jim White and Associates, for breach of statutory duty under section 475.278, negligence and negligent misrepresentation.
At trial, her counsel called two witnesses and then rested at the end of the second day. The trial court granted directed verdicts for all defendants and denied post-trial motions for a new trial and for relief from judgment. She appealed (No. 2D2022-2349), and the case was argued remotely on February 27, 2024. The points below are what the lawyers argued and what the judges asked, not findings by the court.
- Carroll Sanders, for Ms. Landin, argued that Johnson v. Davis requires proof of materiality, not a dollar figure, and that jurors could use common knowledge to value the damage shown in photographs.
- He argued the trial court erred by excluding a contractor’s records he called smoking-gun evidence of the seller’s knowledge and additional damage photographs, and that counsel rested only because of a migraine and the court’s suggestion the trial would resume the next day.
- Lori A. Heim, for the Century 21 defendants, argued the MLS listing disclosed a wood-burning fireplace, Ms. Landin admitted she never read it, the inspection report noted a chimney and recommended a chimney inspection, and the buyer presented no evidence of damages or of how the defect affected value.
- Ryan M. Schmidt, for the seller, argued there was no evidence she knew the condition behind the wall, and that the contractor records were properly excluded as layered hearsay.
- One judge questioned how a jury could award damages with no evidence of the cost of repair, and noted the record showed counsel chose to rest.
The Decision
The Second District affirmed on March 8, 2024. The ACIS docket lists the disposition as “Per Curiam Affirmed,” with no written opinion. Ms. Landin moved for rehearing, rehearing en banc and a written opinion; the court denied that motion on May 3, 2024, and the mandate issued June 3, 2024.
Because there is no opinion, the affirmance does not tell us whether the court relied on the lack of damages evidence, the MLS disclosure, the lack of proof of the seller’s knowledge, or something else. It means the directed verdicts stand. It is not a ruling that an expert is always required to prove damages in a nondisclosure case.
The Law
In Johnson v. Davis, 480 So. 2d 625 (Fla. 1985), the Florida Supreme Court held that a seller of a home who knows of facts materially affecting its value that are not readily observable and not known to the buyer must disclose them. The buyer still has to prove the seller’s knowledge, the materiality of the fact, and damages caused by the nondisclosure.
Real estate licensees have their own disclosure duty. Under section 475.278, a single agent or transaction broker must disclose to the buyer all known facts that materially affect the value of residential real property and are not readily observable.
Procedurally, a directed verdict under rule 1.480 ends the case when the plaintiff’s evidence, viewed in the plaintiff’s favor, cannot support a verdict on an essential element. Post-trial, Ms. Landin sought a new trial under rule 1.530 and relief from judgment under rule 1.540(b); both were denied, and the appeal did not change that.
Lessons
- Prove damages with evidence: a repair estimate, a contractor’s testimony, or an appraiser on diminished value. Do not count on the jury’s common sense.
- Line up every witness, including experts, before trial, and subpoena them. A missing expert can end the case.
- Resting is final. Once you rest, the defense will move for directed verdict on whatever is missing.
- Buyers: read the MLS listing, the seller’s disclosure and the inspection report, and follow up on anything they mention, such as a chimney.
- Plan for evidence rulings. If key records may be excluded as hearsay, have the witness who made them ready to testify.
Watch the Oral Argument
This is the recording of the actual oral argument, posted on the channel. What lawyers and judges say at argument is not the ruling; the decision is summarized above.
🏛️ Seller Hid Home Defect — Does Johnson v. Davis Require Expert Damages Proof? | 22-2349 | FL DCA
Read the Law on FloridaRules.net
The statutes and court rules discussed in this article, free to read on FloridaRules.net:
Another upload of the same argument
Go Deeper
- Vacant Lot Buyers Lose Nondisclosure Case Over Hidden Muck (Eiman v. Sullivan)
- Is a Seller Liable for a Hidden Defect That Kills Someone After the Sale? (Georgia-Pacific)
- Buyer's Agents, Commissions, and Dual Agency in Florida After the NAR Settlement
Frequently Asked Questions
Can I sue the seller for not disclosing a problem with my house in Florida?
Yes, under Johnson v. Davis, if the seller knew of a defect that materially affects value, it was not readily observable, and you did not know about it. You must prove each of those elements and your damages. In Landin, the buyer lost on directed verdict before the defense case began.
Do I need an expert to prove damages in a hidden defect case?
Not always, but you need competent evidence of the amount, such as repair estimates or testimony about cost or lost value. In Landin, the buyer offered photographs and her own testimony, and the directed verdict was affirmed without an opinion.
Is a fireplace listed in the MLS a disclosure to the buyer?
The panel in Landin suggested it was, noting the buyer admitted she never read the listing, but because the affirmance has no opinion, the case does not settle the point. The safer course for sellers is to disclose in the written seller disclosure, and for buyers to read the listing.
Can I sue my real estate agent for not telling me about a defect?
Possibly. Section 475.278 requires agents to disclose known facts that materially affect the value of residential property and are not readily observable. The buyer must still prove what the agent knew and the resulting damages.
Talk to a Florida real estate litigation lawyer
Weidner Law, P.A. handles Florida real estate disputes, title problems and appeals from St. Petersburg. If you need a real estate litigation lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: every Florida statute and court rule is on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
