B & J Holding Corp. v. Weiss
| Decision Date | 22 November 1977 |
| Docket Number | No. 76-1574,76-1574 |
| Citation | 353 So.2d 141 |
| Court | Florida District Court of Appeals |
| Parties | B & J HOLDING CORPORATION, a Florida Corporation, et al., Appellants, v. Bertha WEISS et al., Appellees. |
L. J. Cushman, Miami, for appellants.
Williams, Salomon, Kanner & Damian and Gary S. Brooks, Miami, for appellees.
Before PEARSON, HAVERFIELD and NATHAN, JJ.
This is an appeal by defendant corporate developer and its three principal officers from a final judgment totalling $51,489.88 entered pursuant to a jury verdict in favor of the plaintiffs, a condominium association and the unit owners, in this action for breach of implied warranty and contract.
Several unit owners in the Stuart House Condominium on behalf of themselves, the remaining unit owners and the condominium association filed a breach of contract and implied warranty action against the developer, B & J Holding Corporation, and its three principal officers, Louis Sternberg, Ben Okun and Louis Halpern, who were the initial officers and directors of the condominium association. Plaintiffs' complaint, in essence, alleged that B & J breached its purchase contract and implied warranties of fitness by substituting inferior features for those set forth in the documents incorporated into the purchase contract thereby changing the building plans filed with the local governmental authority, and constructing the common elements and systems of the building in an improper and inferior manner. The alleged deficiencies consisted of the following: (1) omission of sound boards in party walls, (2) omission of moisture proofing in the card room wall, (3) utilization of an incorrect voltage system, (4) utilization of 3 HP rather than 5 HP water pumps, (5) failure to provide housing for the hot water heaters on the roof, and (6) use of clear plate glass rather than tinted glass. The complaint further alleged that Sternberg, Okun and Halpern, as the initial officers and directors of the condominium association, breached their fiduciary duty to the association in failing to assess B & J as the owner of the unsold units for the maintenance payments due the association. Plaintiffs prayers for punitive damages and attorney fees were ultimately stricken by the court. At the ensuing trial, the jury returned a verdict against B & J for $48,884 on the breach of contract and implied warranty counts, and a $2,605.88 verdict against B & J, Sternberg, Okun and Louis Halpern holding them jointly and severally liable for the breach of their fiduciary duty to the association. Judgment was entered accordingly.
After considering the arguments raised in defendants' first two points on appeal that plaintiffs, as a matter of law, could not prevail upon the counts of breach of contract and implied warranty, we conclude that these points have been adversely determined to defendants in David v. B & J Holding Corp., 349 So.2d 676 ().
Defendants also argue that plaintiffs were not entitled to recover the cost of remedying or repairing the deficiencies because they produced no evidence as to the sums incurred to correct or repair the deficiencies.
The record contains ample testimony as to the expenses which will have to be incurred to correct the defects and in a case of this nature the measure of damages is the cost of correcting the defects or completing the omissions. Edgar v. Hosea, 210 So.2d 233 (Fla.3d DCA 1968).
Next, defendants Sternberg, Okun and Halpern contend the court erred in instructing the jury that it could find them personally liable, as initial officers and directors of the condominium association, for B & J's failure to make the maintenance payments for the unsold units to...
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