Brickell Bay Condominium Association, Inc. v. Forte

• Decision Date: 12 January 1982
• Docket Number: No. 80-1878,80-1878
• Citation: 410 So.2d 522
• Parties: BRICKELL BAY CONDOMINIUM ASSOCIATION, INC., Appellant, v. John FORTE, Michael Forte and Brickell Bay Club, Inc., Appellees.
• Court: Florida District Court of Appeals

Page 522

410 So.2d 522

BRICKELL BAY CONDOMINIUM ASSOCIATION, INC., Appellant, v. John FORTE, Michael Forte and Brickell Bay Club, Inc., Appellees.

No. 80-1878.

District Court of Appeal of Florida, Third District.

Jan. 12, 1982.

Rehearing Denied Feb. 22, 1982.

Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik and Paul E. Gifford, Miami, for appellant.

Hall & Hauser and Richard F. O'Brien III, Miami, for appellees.

Before SCHWARTZ and DANIEL S. PEARSON, JJ., and OWEN, WILLIAM C., Jr., (Ret.), Associate Judge.

DANIEL S. PEARSON, Judge.

The appellant, Brickell Bay Club Condominium Association, Inc. (the Association), whose members are the unit owners of the Brickell Bay Club Condominium, was denied the right to intervene in an action by the developers of the condominium against Aetna Drywall Contractors, Inc. (Aetna), seeking damages because of Aetna's negligent performance of construction of the condominium. The Association's asserted interest in the pending litigation arises from an assignment from the developers, which provides in pertinent part:

"2. The Assignor does hereby assign, set over and transfer unto the Assignee, the benefit of all of Assignor's right, title and interest in and to all bonds and warranties (express or implied) of every kind, character and description furnished to and running in favor of the Assignor by all of the contractors, sub-contractors and materialmen who furnished and/or performed work, labor, services and materials in connection with the construction of the Brickell Bay Club Condominium and all of its appurtenances, except as hereinafter provided.

"3. The Assignor has advised the Assignee of the following:

"(a) That there is presently pending in the Circuit Court of Dade County, Florida, certain litigation between Assignor and materialmen, suppliers and sub-contractors who performed work, labor services on and/or furnished materials to the Brickell Bay Club Condominium.

"(b) That such litigation was initiated in each instance by the sub-contractors and materialmen.

"(c) That the Assignor has and/or will, in defending such actions, assert affirmative defenses and/or counterclaims against the claimants therein.

....

"(b) Any proceeds obtained as a result of such pending litigation will first be used to offset any claims within such litigation by any party against (the developers), or to satisfy any judgments which such party may have against (the developers) and the balance, after all such offsets, to the party against whom the judgment was entered or any other party to such litigation shall be remitted to Assignee, without claim by Assignor, except to the extent of attorneys' fees and costs expended by Assignor to obtain such result."

We hold that the trial court abused its discretion in denying intervention, see Coral Bay Property Owner's Association v. City of Coral Gables, 305 So.2d 853 (Fla. 3d DCA 1975), because (1) the status of the Association as a partial and potentially...