NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
EDWARD E. RODRIGUEZ and
LINDA M. RODRIGUEZ,
TOMBRINK ENTERPRISES, INC.,
a Florida corporation; JOHN W. BARCO,
an individual, and BRITTON &
ASSOCIATES, a Florida corporation,
Opinion filed December 3, 2003.
Appeal from the Circuit Court for Pasco
County; Linda H. Babb, Judge.
Marie Tomassi, Richard J. McIntyre, Brigid
A. Smith of Trenam, Kemker, Scharf,
Barkin, Frye, O'Neill & Mullis, P.A., St.
Petersburg, for Appellants.
David J. Murphy of Greenfelder, Mander,
Murphy, Dwyer & Morris, Dade City, for
No appearance for Appellees John W.
Barco and Britton & Associates.
BARTON, JAMES M., II, Associate Judge.
Case No. 2D03-1880
The trial court entered final summary judgment in favor of Appellee
Tombrink Enterprises, Inc. (Tombrink), one of three defendants in an action arising out
of the purchase of Pasco County real property by Appellants Edward and Linda
Rodriguez (Rodriguezes). We affirm the final summary judgment entered on the
Rodriguezes' claim for breach of an oral contract but reverse as to the claim for
In this dispute, Tombrink, the owner, listed the property with a realty
company, Britton & Associates, whose employee John Barco (Barco) showed the
property to the Rodriguezes.1 The Rodriguezes indicated to Barco that they were
seeking vacant land on which to build their home and emphasized that they were only
interested in purchasing property where development of adjacent parcels would not
permit mobile or manufactured homes. In showing the Tombrink property to the
Rodriguezes, Barco, according to Mrs. Rodriguez’ affidavit, stated that Tombrink did not
plan to allow mobile or manufactured homes on the surrounding property which
Tombrink also owned.
The Rodriguezes purchased a thirteen acre parcel from Tombrink. The
sales contract includes deed restrictions which preclude mobile or manufactured
homes. Thereafter, Tombrink sold forty-five acres of its property adjoining the
Rodriguez parcel to another individual without the restrictions regarding mobile or
The Rodriguezes named both Barco and Britton & Associates as defendants
in their initial complaint. The claims against Barco and Britton & Associates remain
pending and are not involved in this appeal.
manufactured homes. The purchaser of the adjoining property plans to allow mobile
In their complaint, the Rodriguezes asserted breach of an oral agreement
by Tombrink based on the oral promises of its agent, Barco, concerning the use and
restrictions governing the adjacent parcels of real estate owned by Tombrink. In a
separate count, the Rodriguezes sued Marco and Britton & Associates for
After the trial court granted Tombrink’s motion for summary judgment as to
the claim for breach of an oral contract, the Rodriguezes were allowed to amend their
complaint to add Tombrink as a defendant on their misrepresentation claim. The
successor trial judge granted Tombrink’s motion for summary judgment as to the
misrepresentation theory and dismissed Tombrink from the case. The Rodriguezes
timely challenge in this appeal the trial court’s rulings on their breach of contract and
STANDARD OF REVIEW
We review the orders of the trial court granting motions for summary
judgment de novo. Howard v. Savitsky, 813 So. 2d 978 (Fla. 2d DCA 2002). In
evaluating the record, we, like the trial court, must construe the facts in the light most
favorable to the Rodriguezes, the non-moving party. Castellano v. Raynor, 725 So. 2d
1197 (Fla. 2d DCA 1999). The facts must be so clear and undisputed that only
questions of law remain. Carter v. Brown & Williamson Tobacco Corp., 778 So. 2d 932
(Fla. 2000). Tombrink, the moving party, must demonstrate that it is entitled to entry of
judgment as a matter of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760
So. 2d 126 (Fla. 2000).
BREACH OF ORAL CONTRACT
The trial court correctly entered summary judgment on the Rodriguezes’
breach of contract claim. The final written contract between the Rodriguezes and
Tombrink contains a so-called integration clause.2 The purported oral agreement
alleged by the Rodriguezes concerning Tombrink’s agreement to prohibit mobile and
manufactured homes on adjoining property merged into the final written agreement.
Titusville Assocs., Ltd. v. Barnett Banks Trust Co., 591 So. 2d 609 (Fla. 1991). Thus,
the Rodriguezes may not enforce the oral contract alleged in the original complaint.
The law requires a different result on the Rodriguezes’ misrepresentation
claim against Tombrink. The existence of an integration clause does not bar a claim for
fraudulent misrepresentation. Mejia v. Jurich, 781 So. 2d 1175 (Fla. 3d DCA 2001).
COMPLETE AGREEMENT: This Contract is the entire
agreement between the Buyer and Seller, except for
brokerage agreements, no prior or present agreements will
bind Buyer, Seller or Broker unless incorporated into this
Contract. Modifications of this Contract will not be binding
unless in writing, signed and delivered by the party to be
bound. Signatures, initials, documents referenced in this
Contract, Counterparts and written modifications
communicated electronically or on paper will be acceptable
for all purposes, including delivery, and will be binding.
Handwritten or typewritten terms inserted in or attached to
this Contract prevail over preprinted terms. If any provision
of this Contract is or becomes invalid or unenforceable, all
remaining provisions will continue to be fully effective. This
Contract will not be recorded in any public records.
We agree with the conclusion of the Third District Court of Appeal in the Mejia opinion
that an integration clause “does not affect oral representations which are alleged to
have fraudulently induced a person to enter into the agreement.” Id. at 1178.
Tombrink argues that the record conclusively establishes that its agent
Barco had no authority to misrepresent its intentions regarding adjoining property. We
disagree. In a case involving the authority of a real estate agent, the owner of real
estate is responsible for his agent’s unauthorized representations, if true
representations as to the same matter were within the agent’s authority, and if the buyer
had no notice that the representations were unauthorized. Outlaw v. McMichael, 397
So. 2d 1009, 1010 (Fla. 1st DCA 1981).
The elements of both actual and apparent agency are set forth in Ilgen v.
Henderson Properties, Inc., 683 So. 2d 513 (Fla. 2d DCA 1996).3 Normally, the
existence and scope of an agency relationship are questions of fact for the jury. Moore
v. River Ranch, Inc., 642 So. 2d 642 (Fla. 2d DCA 1994). The record in the instant case
reflects issues as to the scope of Barco’s authority as Tombrink’s agent.
The elements of actual agency are:
acknowledgment by the principal that the agent will act for him;
acceptance of the undertaking by the principal; and
control by the principal over the actions of the agent.
Apparent agency requires proof of:
representation by the purported principal;
reliance on that representation by a third party; and
a change in position by the third party in reliance upon such
The order granting the motion for summary judgment as to breach of oral
contract against Tombrink is affirmed; the final judgment on the Rodriguezes’ claim for
misrepresentation against Tombrink is reversed, and the cause is remanded for trial.
Affirmed in part, reversed in part, and remanded.
WHATLEY and NORTHCUTT, JJ., Concur.