Third District Court of Appeal
State of Florida
Opinion filed August 5, 2026.
Not final until disposition of timely filed motion for rehearing.
No. 3D25-1232
Lower Tribunal No. 22-3065-CA-01
9740 W Bay Harbor Dr, LLC, et al.,
Appellants,
vs.
Bay Harbour Investment, Inc.,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Antonio Arzola, Judge.
Conroy Simberg and Hinda Klein (Hollywood), for appellants.
Law Offices of Moises A. Saltiel, P.A. d/b/a Saltiel Law Group and Matthew Carcano, for appellee.
Before GORDO, LOBREE and GOODEN, JJ.
GORDO, J.
9740 W Bay Harbor Dr, LLC and Sina, LLC—together with their
principals Elias Sabbagh and Samuel Sami (Sellers)—appeal from a final
judgment entered following a jury verdict in favor of Bay Harbour Investment,
Inc., and its principal Mauricio Moya (Buyer). We have jurisdiction. Fla. R.
App. P. 9.030(b)(1)(A).
This appeal concerns the sale of two contiguous waterfront lots for a
combined $9 million. Both property owners are licensed real estate
professionals. The lots were marketed as an “excellent development
opportunity” anchored by a proposed luxury condominium project the Sellers
represented was approved and “ready to go.” Buyer's signed proposal
sought a 30-day due-diligence/inspection period, but the Sellers rejected it
and made waiver of any due diligence a condition of sale.
Buyer executed two vacant-land contracts to purchase the lots “as is”
for $9 million with a combined deposit of $900,000—later increased to $1.2
million. The contracts elected “No Due Diligence Period” recited that Buyer
was “satisfied that the Property is suitable” and stated the contract “is not
contingent on Buyer conducting any further investigations” while preserving
a 30-day right to terminate if satisfactory environmental and zoning
confirmations were not obtained. The contract contained a provision that
advised Buyer to verify all material facts and stated that Buyer “agrees to rely
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solely on Seller, professional inspectors and government agencies for
verification of the Property condition.”
Before closing Buyer's attorney performed a title and lien search and
discovered that in 2018 the Town of Bay Harbor Islands commissioned an
engineering report which found the seawall serving both lots was in “critical
condition” and that the Town had sent the Sellers repeated “courtesy notices”
requesting repairs. The Sellers requested extensions in response to the
notices and represented that a new seawall would be installed as part of the
proposed project. No formal code violation was ever issued and no fine
imposed while the Sellers owned the lots.
Buyer retained engineer David Olin who found structural defects in the
seawall. Buyer notified the Sellers that they had discovered “material issues
with the seawall of the properties, rendering them defective and out of
compliance with city ordinances or code” and that Sellers “failed to disclose
the issue” but that Buyer sought an “amicable resolution prior to closing”
rather than “engaging in protected litigation afterwards.” Sellers responded
that there was “no problem” and that Buyer was “making a problem where
there is no problem” and supplied a letter from engineer Manuel Siques.
Siques’s letter, however, stated that he only “inspected the existing wood
deck” not the seawall. Facing forfeiture of their $1.2 million deposit and
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Sellers’ threat to sue for breach of contract if Buyer didn’t close, Buyer closed
“under protest.” After closing, the Town advised Buyer that the proposed
project could not be approved as designed and Buyer ultimately replaced the
seawall at a cost of $108,627.60.
Buyer sued for fraudulent inducement, negligent misrepresentation
and FDUTPA violations alleging that the Sellers concealed the seawall
defects and misrepresented the properties’ suitability for the planned
development. The complaint sought general damages and each cause of
action requested “final judgment for damages.” Sellers denied liability and
filed a motion to dismiss asserting that the claims were barred by the doctrine
of caveat emptor. Buyer filed a revised complaint asserting that exceptions
to caveat emptor applied and that specifically Sellers “employed an artifice
or trick to induce Buyer into waiving due diligence” among other things.
The case proceeded to trial where the Sellers objected to the
presentation of any damages beyond the cost of replacing the seawall—
arguing such damages were unpled special damages. After a five-day jury
trial, the jury found Sellers liable for fraudulent inducement, negligent
misrepresentation and FDUTPA violations and awarded Buyers
approximately $300,000 in damages—$59,000 against each LLC and
$182,000 against the Sellers individually.
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On appeal the Sellers argue the trial court erred in denying their motion
for directed verdict they raised at the close of Buyer’s case because caveat
emptor barred Buyer's claims. The Sellers further argue the court improperly
permitted Buyer to recover unpled special damages by allowing diminution
in value1 damages.
“We review the trial court's denial of a motion for a directed verdict…
de novo. When deciding the appropriateness of a directed verdict…
appellate courts use the test of whether the verdict [is] supported by
competent, substantial evidence. [A motion for directed verdict] should be
granted only if no view of the evidence could support a verdict for the
nonmoving party and the trial court therefore determines that no reasonable
jury could render a verdict for that party.” Forbes v. Millionaire Gallery, Inc.,
335 So. 3d 1260, 1262–63 (Fla. 3d DCA 2022).
The record reflects that Sellers failed to file a timely post-trial motion.
Their failure to do so is fatal to the preservation of their appellate arguments.
1
Diminution in value refers to the difference between a property’s fair market value resulting from damage to the property, measured by the difference between the property’s fair market value before and after the damage. See Davey Compressor Co. v. City of Delray Beach, 639 So. 2d 595, 596 n.1 (Fla. 1994) (“The diminution in value is the difference between the value of real property before and after the injury.”).
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See Suzuki Motor Corp v. Winckler, 434 So. 3d 104, 111 n.4 (Fla. 5th DCA
2026) (“That said, Suzuki also waived the preclusion argument in failing to
file a post-verdict motion under Florida Rule of Civil Procedure 1.480. Under
the rule, Suzuki had fifteen days after the jury’s verdict to move for judgement
in accordance with its motion for directed verdict. See Fla. R. Civ. P.
1.480(b). Its failure to do so constituted waiver. See Hartzog v. State, 133
So. 3d 570, 573 n.3 (Fla. 1st DCA 2014) (“[A] pre-verdict motion for directed
verdict does not itself preserve the point; after the verdict is returned, the
movant must file another motion, e.g., a motion to set aside the verdict and
enter judgement in accordance with the motion for directed verdict.”);
Roosevelt v. State, 42 So. 3d 293, 298 (Fla. 3d DCA 2010) (“In order to
preserve the point for appellate review, it was necessary that the
defendant… make the appropriate post-trial motion.” (emphasis added));
Adee Resort Corp v. Brewer & Co., 653 So. 2d 1052, 1053 (Fla. 4th DCA
1995) (“Failure to timely file [a rule 1.480 motion] is a waiver.”)”); Murray v.
State, 27 So. 3d 781, 781-82 (Fla. 3d DCA 2010) (“The defense made timely
motions for a directed verdict. However, [Rule] 1.480(b) has been
interpreted as requiring a party to file, in addition, a post-verdict motion for
entry of judgement in accordance with the motion for a directed verdict.”).
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We note that in a fraud action involving realty the standard measure of
damages is “out-of-pocket” loss or “benefit of the bargain”—the difference
between value as represented and actual value—and a decline in market
value is general, not special, damages. See Kind v. Gittman, 889 So. 2d 87,
90 (Fla. 4th DCA 2004) (“[T]here are two standards for measuring damages
in an action for fraud, and either may be used depending upon the
circumstances…. The first standard is the ‘benefit of the bargain’ rule which
awards as damages the difference between the actual value of the property
and its value had the alleged facts regarding it been true. The second
standard is the ‘out-of-pocket’ rule which awards as damages the difference
between the purchase price and the real or actual value of the property.”
(quoting Martin v. Brown, 566 So. 2d 890, 891–92 (Fla. 4th DCA 1990));
Nystrom v. Cabada, 652 So. 2d 1266, 1268 (Fla. 2d DCA 1995) (same).
Affirmed.
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