Opinion
No. 76-1952.
November 22, 1977. Rehearing Denied January 9, 1978.
Appeal from the Orange County Circuit Court, Thomas E. Kirkland, J.
F. Hartselle Baker, Orlando, for appellants.
Ronald A. Cyril, of Nelson, Hesse, Cyril Weber, Sarasota, for appellee Textured Coatings of America, Inc.
Pierre Lee Steward, Orlando, for appellee Blackton, Inc.
Appellant sued the manufacturer, distributor and applicator of Tex-Cote, a fiberglass and asbestos material advertised to be an end to painting problems on house exteriors. The complaint alleges breach of warranty, fraud and negligence on the part of the various Defendants in the advertising, manufacturing and applying of the product. Upon a review of the evidence presented we find the court erred in directing a verdict for the Defendants.
For example, Appellants proved they relied upon allegedly untrue statements in a Textured Coatings of America, Inc. brochure which was distributed by or through the other Appellees. Appellants established their reliance thereon was to their detriment and otherwise established a prima facie case against the Appellees. In addition, the uncontroverted proof was that the Tex-Cote, which had deteriorated to an unsightly peeling, could not be removed and it would take $1,650.00 to cover the unappealing areas with aluminum siding. Of course, maybe the Appellees at trial can prove otherwise but the matter should be tried. We remand this matter for trial on all issues.
REVERSED and REMANDED with directions.
CROSS and ANSTEAD, JJ., concur.