Drexel Properties, Inc. v. Bay Colony Club Condominium, Inc.
| Decision Date | 04 November 1981 |
| Docket Number | No. 79-2126,79-2126 |
| Parties | DREXEL PROPERTIES, INC., Appellant, v. BAY COLONY CLUB CONDOMINIUM, INC., et al., Appellees. |
| Court | Florida District Court of Appeals |
Eric B. Meyers and Gregory P. Borgognoni of Shutts & Bowen, Miami, and Brian C. Deuschle of Spear, Deuschle & Curran, Fort Lauderdale, for appellant.
Alan S. Becker and Robert J. Manne of Becker, Poliakoff & Streitfeld, P. A., Fort Lauderdale, for appellee.
Barry A. Mandelkorn of Ruden, Barnett, McClosky, Schuster & Russell, Fort Lauderdale, for amicus curiae, Oriole Homes Corp.
William G. Crawford, Jr., Fort Lauderdale, for amicus curiae, American Institute of Architects/Broward Chapter.
David St. John of Powell, Tennyson & St. John, P. A., West Palm Beach, for amici curiae, Florida Consumers' Federation and Condominium Co-op Executive Council.
A non-jury trial of this class action for construction defects resulted in a final judgment in the amount of $917,356.00. The action was commenced by the condominium association and representative unit owners, appellees herein, against the developer of the Bay Colony Club Condominium, appellant herein. The amended complaint, upon which the case was tried, claimed that the developer was guilty of breach of implied warranty and of negligence in allegedly failing to construct the condominium in a manner required by the South Florida Building Code (Broward Ed. 1972), plans and specifications, and good design, engineering and construction practice. The items of damages awarded which are disputed on appeal involve "decorative aluminum fencing" ($145,000.00), "ceiling roof assembly" ($292,000.00), and "aluminum awning windows" ($288,500.00).
The construction plans filed with the applicable governmental authority, and upon which a building permit was issued, detailed the construction of decorative aluminum fencing around the air conditioning units which are located on the top of the roof of each building. It was not installed and the construction plans were not amended. Its purpose was to perform an aesthetic rather than utilitarian function. No physical damage was claimed. The trial judge imposed liability upon the developer for "loss of bargain" because of its failure to file an amended plan with the governmental authority. 1
The South Florida Building Code requires that ceilings be of not less than one-hour fire resistive construction. 2 On conflicting testimony the trial judge found the ceiling roof assembly was not capable of a one-hour fire resistive rating. We cannot disturb this finding since it is supported by substantial competent evidence.
The South Florida Building Code requires that a bedroom window be capable of a five square foot opening without the use of tools. 3 On conflicting testimony the trial judge found that the bedroom aluminum awning windows could not be opened to provide a clear opening of five square feet without the use of tools. We cannot disturb this finding since it is supported by substantial competent evidence.
In its final judgment the trial court made the following conclusions of law.
(a) Plaintiffs have a right to maintain this action on behalf of both original and subsequent purchasers ...
(a) That original purchasers and subsequent purchasers of condominium apartments may recover for the entire damages to items which are common elements.
(b) That original purchasers who still own their apartments are entitled to recover for the full amount of damage to the common elements of the condominium resulting from Defendant's breach of implied warranties of fitness and merchantability notwithstanding that they own those common elements as tenants in common with subsequent purchasers of the condominium apartments ...
The appellant has raised a number of points on appeal. 4 We believe only three merit consideration. Appellant states these points as follows:
POINT I
Because the negligence alleged in the complaint did not result in physical harm to plaintiffs or their property, the trial court erred by allowing recovery on the basis that violations of the building code and defects in the buildings at Bay Colony were negligence.
The trial court erred by creating an implied warranty of strict compliance with the building code.
A. The implied warranty extended to original purchasers of buildings in Florida requires the building to be reasonably fit for use as a residence.
B. The alleged building code violations and defects in the instant case were not found to have affected the fitness for use as a residence of any condominium unit at Bay Colony.
Even if Drexel had been negligent or had breached an implied warranty the trial court erred by awarding damages to subsequent purchasers and by finding that plaintiffs could recover the full amount of damages to common elements.
In the beginning, Gable v. Silver, 258 So.2d 11 (Fla. 4th DCA 1972), adopted and approved, 264 So.2d 418 (Fla.1972), extended an implied warranty of fitness and merchantability to the purchase of new condominiums from builders. That case involved a malfunctioning air conditioning system under an expired express warranty. The Gable opinion reached no decision as to subsequent purchasers but observed We recognize that liability must have an end but question the creation of any artificial limits of either time or remoteness to the original purchaser.
See, also, Forte Towers South, Inc. v. Hill York Sales Corp., 312 So.2d 512 (Fla. 3d DCA 1975).
Wittington Condominium Apartments, Inc. v. Braemar Corporation, 313 So.2d 463 (Fla. 4th DCA 1975), was a class action for negligent construction and breach of contract. In a footnote 5 the court stated that implied warranty extends to "the purchaser of a new condominium."
In another class action, Imperial Towers v. Brown, 338 So.2d 1081 (Fla. 4th DCA 1976), the court said that difference as to unit owners may permit subclasses to be designated for the purpose of determining damages.
In David v. B & J Holding Corporation, 349 So.2d 676 (Fla. 3d DCA 1977), plaintiffs brought suit for damages for developer's failure to construct according to plans as filed with the governmental authority. The complaint concerned soundproofing and insulation in party walls. The developer failed to file an amendment to the plans, albeit it reserved the right in the sales contract to make changes.
The court said:
... we conclude that defendant, developer-builder impliedly warranted to the plaintiff condominium purchasers that their unit would be constructed in accordance with the specifications contained in the building plans filed with and approved by the appropriate governmental authority ...
... therefore, having departed from those specifications, is liable to plaintiffs for breach of implied warranties of fitness and merchantability.
In Putnam v. Roudebush, 352 So.2d 908 (Fla. 2d DCA 1977), the court held that purchasers could not recover from developer on theory of breach of implied warranty for a noisy air conditioner since the test was "whether the premises met ordinary, normal standards reasonably to be expected of living quarters of comparable kind and qualities."
B & J Holding Corp. v. Weiss, 353 So.2d 141 (Fla. 3d DCA 1977), was a suit by a condominium association and unit owners against the developer for breach of contract and implied warranty. The defects alleged were no sound boards in party walls, no moisture proofing in card room wall, incorrect voltage system, utilization of 3 HP rather than 5 HP water pumps, failure to house hot water heaters on roof and use of clear plate glass rather than tinted glass. The court affirmed the final judgment which awarded damages to correct the defects or complete the omissions.
In Gory Associated Industries, Inc. v. Jupiter Roofing & Sheet Metal, Inc., 358 So.2d 93 (Fla. 4th DCA 1978), the court allowed a homeowner the cost of replacement of a defective roof against a tile manufacturer. Judge Letts, speaking for the court, said:
We would comment that we are sympathetic to a replacement of defective work. If a proud householder, who plans to live out his days in the home of his dreams, orders a new roof of red barrel tile and the roofer instead installs a purple one, money damages for the reduced value of his house may not be enough to affect the strident offense to aesthetic sensibilities, continuing over the life of the roof.
Simmons v. Owens, 363 So.2d 142 (Fla. 1st DCA 1978), involved water rot and termite infestation due to the negligent construction of a house by the defendant-contractor. The defects were latent and resulted from non-compliance with the building code. The plaintiff purchased the house from the first buyer. The court held there was no implied warranty because plaintiff was a remote purchaser. However, the court held that the contractor could be sued on the theory of negligence. See, also, Slavin v. Kay, 108 So.2d 462 (Fla.1958) and Geer v. Bennett, 237 So.2d 311 (Fla. 4th DCA 1970). 6
Strathmore Riverside v. Paver Development Corp., 369 So.2d 971 (Fla. 2d DCA 1979), cert. denied, 379 So.2d 210 (Fla.1979), recognized that a cause of action exists for breach of implied warranty of compliance with plans and specifications approved by governmental body, of compliance with applicable building codes, and of fitness and merchantability, as to original purchasers in privity with developer. The court specifically rejected the invitation to extend the implied warranty to remote or subsequent purchasers. In Strathmore, the complaint did not include a count in negligence in behalf of original or subsequent purchasers.
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