Opinion
Nos. AQ-231, AQ-299.
August 3, 1983.
Appeal from the Circuit Court, Duval County, A.C. Soud, Jr., J.
Robert F. Spohrer and Timothy W. Terry of Zisser, Robinson, Spohrer, Wilner Harris, P.A., Jacksonville, for appellants.
Simon D. Rothstein of Adams, Rothstein Siegel, Jacksonville, for appellees.
We affirm the trial court's judgment for plaintiffs entered upon a jury verdict on this claim for damages resulting from alleged fraudulent misrepresentations of material facts in connection with plaintiffs' purchase of a home. In doing so we adhere to Sprayberry v. Sheffield Auto and Truck Service, Inc., 422 So.2d 1073 (Fla. 1st DCA 1982), pet. rev. vol. dism., 427 So.2d 738 (Fla. 1983), holding that plaintiff's burden of proof is that of a preponderance or greater weight of the evidence. The instruction to this jury was therefore correct. In our view the reference in Canal Authority v. Ocala Manufacturing, Ice and Packing Co., 332 So.2d 321, 327 (Fla. 1976), to "clear and convincing" evidence of fraud is not the Supreme Court's holding in that decision, but is obiter dicta not intended to be decisive of the issue. As we did in Sprayberry, we again make our view of Canal's language explicit so that, if we have misconceived the effect of Canal, that error may be remedied by the Supreme Court in due course.
AFFIRMED.
SHIVERS and NIMMONS, JJ., concur.