Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-2758 _____________________________ ALLISON LYNN BUSUTTIL, CORRECTED PAGE: 5 ATTORNEY INFORMATION Appellant, CORRECTED. MAILED: January 3, 2022 BY: FTA v. CERTIFIED HOME INSPECTIONS, LLC, A Florida Limited Liability Company, JOHN MICHAEL MCDONALD, and VANGUARD REALTY, INC d/b/a COLDWELL BANKER VANGUARD REALTY, and BOBBIE JEAN DEMUNCK, Appellees. _____________________________ On appeal from the Circuit Court for Duval County. Bruce Anderson, Judge. November 24, 2021 M.K. THOMAS, J. Allison Busuttil (Appellant) appeals an order dismissing her second amended complaint against two of the named defendants, Vanguard Realty and Bobbie Demunck (Appellees). 1 Vanguard Realty is a real estate agency, and Demunck is a real estate agent, both of whom represented John McDonald, the previous property owner, in the sale of his residential property. On appeal, Appellant argues the trial court erred by: (1) finding the second amended complaint failed to state a cause of action against Appellees; (2) finding the liability waiver provision in the Purchase and Sale Agreement barred Appellant’s claim against Appellees; and (3) finding Appellees must have had actual knowledge of the condition affecting the value of the property to be liable. Because we find the first issue dispositive, we address our reasoning below but affirm the remaining issues without further comment. I. Appellant purchased a residential property from McDonald. In the Seller’s Disclosure Form, McDonald represented that the roof on the home was approximately one year old and came with a transferrable warranty. Prior to the purchase, Certified Home Inspections, LLC, (CHI) performed an inspection on the home. CHI did not observe any issues with the roof during its inspection. However, approximately seven months after purchasing the property and moving in, Appellant noticed substantial water damage to the ceiling and walls in the rear of the house. After further investigation, it was discovered that the rear portion of the roof had seriously deteriorated and was older than the front portion of the house. Additionally, the area of the roof leak was determined to be an addition to the house that was constructed without required permits. Appellant filed an initial complaint against CHI and McDonald, but later sought leave to amend the complaint to join additional parties. Leave was granted, and Appellant filed an amended complaint and a second amended complaint bringing claims of negligence, negligent misrepresentation, and negligent supply of information against Appellees. 1 The claims against the remaining defendants—the home inspection company, Certified Home Inspections, LLC, and the homeowner, John McDonald—remained viable. 2 Appellees filed a motion to dismiss the second amended complaint, which the trial court granted. In doing so, the trial court found that the complaint lacked allegations that chapter 475, Florida Statutes, imposes a duty on Appellees to perform an inspection and/or determine the existence of any latent conditions in the property where the conditions were not known or readily observable. The trial court further held that the second amended complaint did not allege Appellees had actual knowledge of any alleged defects. As an additional basis of dismissal, the trial court found that pursuant to the Purchase and Sale Agreement, Appellant waived any claims against Appellees regarding failure to disclose the existence of any condition at issue in the case. Appellant now challenges those findings on appeal. II. The trial court’s ruling on a motion to dismiss for failure to state a cause of action is an issue of law, subject to de novo review. Locker v. United Pharm. Grp., Inc., 46 So. 3d 1126, 1128 (Fla. 1st DCA 2010). “[T]he appellate court must accept the facts alleged in a complaint as true when reviewing an order that determines the sufficiency of the complaint.” Id. (quoting Brewer v. Clerk of Cir. Ct., Gadsden Cnty., 720 So. 2d 602, 603 (Fla. 1st DCA 1998)). Appellant argues the trial court erred in finding the second amended complaint failed to state a cause of action because section 475.278, Florida Statutes, imposes a duty upon Appellees to use skill, care, and diligence in the transaction, and subsumed in that duty is a responsibility to investigate encumbrances on a listed property. See § 475.278(3)(a)7., Fla. Stat. In short, when a real estate agent lists a property for sale, the agent has a duty to investigate for unknown defects to the property. Appellant contends an agent’s duty includes researching a property’s history, investigating all potential defects, finding permits, uncovering code violations, and disclosing these to the potential buyer in every real estate transaction. However, this contention fails for multiple reasons. Initially, as Appellant acknowledged at the dismissal hearing below, these purported additional duties to research and investigate find no textual support in chapter 475.278. 3 This Court has no power to change or alter what the Legislature mandated. Fla. Dep’t of Rev. v. Fla. Mun. Power Ag., 789 So. 2d 320, 324 (Fla. 2001) (“Under fundamental principles of separation of powers, courts cannot judicially alter the wording of statutes where the Legislature clearly has not done so. A court’s function is to interpret statutes as they are written and give effect to each word in the statute.”); Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984) (“It has also been accurately stated that courts of this state are without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power.”). Real estate agents clearly have a statutory duty to “[d]isclos[e] all known facts that materially affect the value of residential real property and are not readily observable.” § 475.278(3)(a)9., Fla. Stat. (emphasis added). 2 Had the Legislature intended to include a duty to investigate properties for unknown facts that materially affect the value of the property, it could have done so. Because Appellees, as listing agents, did not have a duty to investigate unknown encumbrances or defects on the property sold, and Appellant did not allege Appellees failed to disclose known facts, 3 the trial court did not err in finding Appellant failed to state a 2 We acknowledge that a question remains as to whether subsection (3) of section 475.278, which applies to single agent relationships, applies in the instant case. Because the Purchase and Sale Agreement indicates both Appellant and McDonald were represented by their own agents, it would not appear that Appellees were acting as single agents on Appellant’s behalf, arguably rendering subsection (3) inapplicable. However, because we find the statute does not include the duty alleged by Appellant, we do not address this issue further. 3 Appellant also argues that contrary to the trial court’s finding otherwise, the complaint does allege Appellees had actual knowledge of the condition in question. We disagree. 4 cause of action and dismissing the complaint. Therefore, we affirm the dismissal of the second amended complaint as to the Appellees. AFFIRMED. LEWIS and OSTERHAUS, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Jose-Trelles Herrera, Herrera Law Firm, P.A., Miami, for Appellant. Fred P. White and Ryan S. Treulieb, Baumann, Gant & Keeley, P.A., Jacksonville, for Appellee Certified Home Inspections, LLC. Zachary C. Crabtree, Crabtree Law Group, P.A., Jacksonville, for Appellee John Michael McDonald. Kansas R. Gooden of Boyd & Jenerette, P.A., Miami; Joanna S. Brunell of Boyd & Jenerette, P.A., Jacksonville, for Appellees Vanguard Realty, Inc. d/b/a Coldwell Banker Vanguard Realty and Bobbie Jean Demunck. 5