                    Case: 12-10517          Date Filed: 11/01/2012   Page: 1 of 5

                                                                        [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                     ________________________

                                             No. 12-10517
                                         Non-Argument Calendar
                                       ________________________

                            D.C. Docket No. 5:09-cv-00374-WTH-TBS

G BARRETT LLC,
f.k.a. Barrett and Gilbert LLC,
GREGORY BARRETT,
individually,
DANIEL GILBERT,
individually,

llllllllllllllllllllllllllllllllllllllll                                 Plaintiffs-Appellants,

                                                 versus

THE GINN COMPANY, et al,

lllllllllllllllllllllllllllllllllllllllll                                           Defendants,

SUNTRUST MORTGAGE, INC.,

llllllllllllllllllllllllllllllllllllllll                                  Defendant-Appellee.
                                       ________________________

                            Appeal from the United States District Court
                                for the Middle District of Florida
                                  ________________________

                                            (November 1, 2012)
              Case: 12-10517     Date Filed: 11/01/2012   Page: 2 of 5

Before TJOFLAT, CARNES and PRYOR, Circuit Judges.

PER CURIAM:

      G Barrett LLC, and its owners, Gregory Barrett, and Daniel Gilbert appeal

the summary judgment against their amended complaint that SunTrust Mortgage,

Inc., fraudulently induced them to purchase overvalued real estate and violated the

Florida Deceptive and Unfair Trade Practices Act. The district court ruled that

Barrett and Gilbert had affirmatively disclaimed any reliance on any

representations by SunTrust about the value of the property. We affirm.

      In June 2005, Gregory Barrett and his wife paid $739,900 to Ginn-LA Pine

Island Ltd., LLLP, to purchase Lot 74 in the Bella Collina West development in

Monteverde, Florida. The Barretts assigned the contract to G Barrett LLC. The

owners of Barrett LLC, Gregory Barrett and Daniel Gilbert, signed all closing

documents and obtained with personal guarantees a mortgage loan of $587,920

from SunTrust.

      The sales contract, loan application, and loan financing agreement signed by

Barrett and Gilbert contained three disclaimers about the value of the property.

First, paragraph 14 of the sales contract provided that Ginn “specifically

disclaim[ed] any responsibility for any . . . statements, promises or representations”

made by its salespersons that were “in conflict with or in addition to the


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information contained in this Contract and the Community Documents.” In

paragraph 14, Barrett and Gilbert “acknowledge[d] that [they] ha[d] not relied

upon any such statements, promises or representations, if any, and waive[d] any

rights or claims arising from any such statements, promises or representations.”

Second, Barrett and Gilbert acknowledged in section nine of the loan application

that “neither [SunTrust] nor its agents, brokers, insurers, servicers, successors or

assigns ha[d] made any representation or warranty, express or implied, . . .

regarding the property or the condition or value of the property.” Third, a notice

provision on page 4 of the financing agreement advised Barrett and Gilbert of their

right to a copy of the appraisal report and provided that “SunTrust makes no

representations or warranties, express or implied, regarding the property, the

condition of the property, or the value of the property.”

      After realtors refused in June 2008 to list Lot 74 for more than $200,000,

Barrett LLC, Barrett, and Gilbert (collectively “Barrett”) filed a complaint against

SunTrust, Ginn, and three other defendants. Barrett alleged that SunTrust colluded

with Ginn fraudulently to induce Barrett to purchase property that had been

overvalued. Barrett also alleged that SunTrust misled Barrett about the value of

the property, in violation of the Deceptive Practices Act, by using an appraisal that

had been artificially inflated and misrepresenting the true loan-to-value ratio for


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the mortgage loan. Barrett sought monetary damages, but Barrett did not request

rescission of the sales contract or the mortgage loan. Later, Barrett settled with

and dismissed the claims against Ginn and the three other defendants.

      SunTrust moved for summary judgment, which the district court granted.

The district court ruled that Barrett “failed to establish a prima facie case under

either the [Deceptive Practices Act] or the tort of fraudulent inducement.” The

district court ruled that the disclaimer in the sales contract “clearly nullif[ied] any

prior representations concerning the value of the property (such as the allegedly

fraudulent appraisal), [and] preclud[ed] any reliance [by Barrett] . . . on such

statements.” In the event that “the terms of the [sales contract] . . . could not offer

protection to SunTrust,” the district court ruled that the disclaimers in the loan

application and the financing agreement “expressly provide[d] that [Barrett] [could

not] rely on any statements from SunTrust concerning the value of the Monteverde

property . . . [and] directly repudiate[d] any prior statements SunTrust may have

made (directly or through its appraiser) concerning the value of Lot 74.”

      The district court correctly granted summary judgment in favor of SunTrust.

Barrett failed to establish a prima facie case of fraudulent inducement because

Barrett could not prove that it had “act[ed] in reliance on [a false] representation”

by SunTrust. Johnson v. Davis, 480 So. 2d 625, 627 (Fla. 1985). In the loan


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application, Barrett expressly disclaimed reliance on any representation made by

SunTrust about the value of Lot 74. See Mac-Gray Servs., Inc. v. DeGeorge, 913

So. 2d 630, 634 (Fla. Dist. Ct. App. 2005); Hillcrest Pac. Corp. v. Yamamura, 727

So. 2d 1053, 1056 (Fla. Dist. Ct. App. 1999). Barrett also failed to prove that

SunTrust made, in violation of the Deceptive Practices Act, a representation that

would likely have misled a reasonable purchaser about the value of Lot 74. See

Millennium Commc’ns & Fulfillment, Inc. v. Office of Att’y Gen., 761 So. 2d

1256, 1263 (Fla. Dist. Ct. App. 2000). Barrett acknowledged in the financing

agreement that SunTrust made no representations or warranties about the value of

the property. Barrett challenges the viability of the disclaimers, but by electing to

sue for damages instead of rescission, Barrett “affirm[ed] the contract, and thus

ratifie[d] the terms of the agreement,” including the disclaimers. Mazzoni Farms,

Inc. v. E.I. DuPont De Nemours and Co., 761 So. 2d 306, 313 (Fla. 2000). The

disclaimers in the loan application and financing agreement expressly contradict

Barrett’s claims about being fraudulently induced to purchase based on

representations by SunTrust about the value of Lot 74.

      We AFFIRM the summary judgment in favor of SunTrust.




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