Gable v. Silver

• Decision Date: 14 January 1972
• Docket Number: No. 70--668,70--668
• Citation: 258 So.2d 11,50 A.L.R.3d 1062
• Parties: , 10 UCC Rep.Serv. 316 David GABLE, Appellant, v. David SILVER et al., Appellees.
• Court: Florida District Court of Appeals

Page 11

258 So.2d 11

50 A.L.R.3d 1062, 10 UCC Rep.Serv. 316

David GABLE, Appellant, v. David SILVER et al., Appellees.

No. 70--668.

District Court of Appeal of Florida, Fourth District.

Jan. 14, 1972.

Rehearing Denied March 3, 1972.

Robert M. Sturrup, of Sturrup & Della-Donna, Fort Lauderdale, for appellant.

Merle Litman, of Litman & Muchnick, Hollywood, for appellees.

WALDEN, Judge.

This suit concerns the dissatisfactions of some condominium apartment owners (plaintiffs) with their air conditioning system and their efforts to obtain relief from the builder (defendant). Final judgment awarded plaintiffs damages. Defendant appeals. We affirm.

Proceeding inversely, Points II and III deal with damages and their cause. We have examined them and find no merit or need for discussion.

Point I contains the gravamen of the appeal and was phrased thusly by appellant:

The court erred in holding that there was an implied warranty of fitness that attached to the air conditioning system which was an integral part of the realty.

The defendant, David Gable, is the builder and developer of the twin condominums. He sub-contracted for the construction of an air conditioning and heating system for the condominiums, which included supply wells.

The condominiums were occupied in late 1966 and early 1967. Almost from the inception the air conditioning system did not work properly. Numerous service calls were made to correct the various complaints without permanent success. The plaintiffs were advised their difficulties with the air conditioning were the result of improper drilling of the wells and improper equipment installation in connection therewith.

The events leading up to this law suit culminated in January of 1968. The entire air conditioning system had malfunctioned as a result of the pump losing its prime.

The condominium owners were told by defendant that the condition could be corrected at a cost to them of $550 (the one year express warranty had expired). Refusing to be swayed again by the defendant's promises, plaintiffs declined the offer and had another engineering company inspect the system and contracted with that company for repairs totalling $5,144. They then sued the defendant to recover their damages and received a judgment of $5,869.11, plus costs.

The air conditioning system had a one year express warranty. All parties acknowledge that this express warranty is not in issue or applicable here. Nevertheless, this express warranty will be examined. It was entered into on March 1, 1966. The warranty said 'All equipment, materials and workmanship installed by seller shall be guaranteed for a period of one year, unless otherwise specified. . . .'

The examination of the main question on appeal, concerning the impositions of implied warranties to real estate, a question of first impression in Florida, must first be based on findings that 1) the express warranty did not render the problem moot and 2) the air conditioning system was in fact realty.

1. We believe that the express warranty present in this cause in no way precluded, or is inconsistent with, the imposition of an implied warranty of fitness and merchantability.

In arriving at this conclusion we first examined the effect of an express disclaimer against implied warranties, a situation Not present here, but an extreme necessary to present in fortifying our conclusion. Typically, such a disclaimer attached to an express warranty would say it was expressly in lieu of all other implied and express warranties.

Aside from an anomaly involving agricultural seed, Corneli Seed Co. v. Ferguson, Fla.1953, 64 So.2d 162, Florida's first two cases in this area declined to impose an implied warranty and gave full effect to the express disclaimer of implied warranties present in the express warranty. Rozen v. Chrysler Corporation, Fla.App.1962, 142 So.2d 735; Friedman v. Ford Motor Company, Fla.App.1965, 179 So.2d 371.

Then came the landmark case of Manheim v. Ford Motor Company, Fla.1967, 201 So.2d 440. Manheim, the car buyer, sued Ford for breach of implied warranty. There was an express warranty, containing a disclaimer of implied warranties, between Ford and its dealer. The court held that the express warranty between Ford and its dealer did not preclude recovery on an implied warranty theory between the Purchaser and Ford.

Manheim spawned a disciple and a protagonist. The disciple was Crown v. Cecil Holland Ford, Inc., Fla.App.1968, 207 So.2d 67. In Crown the dealer, in addition to the manufacturer, had given an express warranty with a disclaimer. The court held Manheim nonetheless controlled and an action for breach of implied warranty was not precluded.

The protagonist was Desandolo v. F. & C. Tractor and Equipment Co., Fla.App.1968, 211 So.2d 576. Desandolo, without discussing Crown, decided that an express disclaimer in an express warranty Between buyer and seller is valid and precluded liability on the basis of an implied warranty of fitness or merchantability. This result was arrived at by distinguishing and limiting Manheim to situations involving warranties between the dealer and the manufacturer. Desandolo also said its facts were not compelling enough to merit the voiding of the disclaimer for public policy reasons as was done in Henningsen v. Bloomfield Motors, Inc., 1960, 32 N.J. 358, 161 A.2d 69.

Since Florida's adoption of the U.C.C. ¹ several cases have continued to apply, more or less, Florida's pre-code law, or at least Manheim, on the effect of disclaimers. See Ford Motor Company v. Pittman, Fla.App.1969, 227 So.2d 246, and Entron, Inc. v. General Cablevision of Palatka, 5 Cir. 1970, 435 F.2d 995. Entron used a blend. It discusses conspicuousness, found it lacking on their facts, then held that, notwithstanding the U.C.C., disclaimer of implied warranties was void in Florida because of Manheim.

Other cases have indicated that the U.C.C. provisions concerning conspicuousness are to be taken quite literally and disclaimers will be restrictively upheld. ²

It should be noted that the U.C.C. provision mentioned has no effect here since there was no disclaimer. ³ The U.C.C. and the Manheim line of cases would indicate that Florida has a liberal policy of allowing litigants their day in court on suits involving breaches of implied warranty of fitness and merchantability. Such a policy becomes important to our central issue.

Since there was no express disclaimer, should we then imply one, due to the inclusive wording used in the contract? We think this would be an entirely artificial way to dispose of this cause. Further, it has consistenly been held that an express warranty is not inconsistent with, does not negate or exclude implied warranties of fitness and merchantability. They may easily coexist. ⁴ We hold such a coexistence lies here.

2. Having preliminarily decided that a suit for breach of implied warranty is proper, we must lay the groundwork for our conclusion that implied warranties apply to real estate, by characterizing the air conditioning system as realty.

Air conditioners can either be fixtures, if they are removable, or realty, if they are fixed. See 43 A.L.R.2d 1378, Anno., Air Conditioning Plant, equipment, apparatus, or the like as fixtures. The main test, according to the annotation, is the intention to make the article a permanent part of the freehold. Another test is if the fixture is removable without damage to the premises.

Florida, in Ridgefield Investors, Inc. v. Holloway, Fla.1954, 75 So.2d 208, held air conditioners to be fixtures. There the air conditioners could be Removed without damage to the premises. Other cases have held that it is a fact question. See Kornblum v. Henry E. Mangels Company, Fla.App.1964, 167 So.2d 16, and Corbett v. Appliance Buyers Credit Corp., Fla.App.1965, 172 So.2d 257. The fact that the instant system was attached and immovable (for example, the supply wells), plus the trial court's factual classification of the system as realty, would eliminate Ridgefield as controlling here.

In Voight v. Ott, 1959, 86 Ariz. 128, 341 P.2d 923, it was held that air conditioning systems in general are a part of realty.

Using and interpolating from the above sources, we conclude the instant air conditioning system was realty.

3. We have arrived at our focal point. This action for breach of implied warranty is properly maintained and it involves realty.

The general and still the majority rule is that implied warranties do not apply to realty. See 25 A.L.R.3d 383, Anno., Defective Home, Vendor's liability. This general rule is fast being eroded. At last count, fourteen states have adopted the modern rule, which extends implied warranties to realty, as later catalogued. Only three states who have recently considered this problem have declined to adopt the modern rule.

Of the states recently adopting the modern rule (since 1963) several provided reasoning and historical background difficult to improve on.

In Bethlahmy v. Bechtel, 1966, 91 Idaho 55, 415 P.2d 698, the court said:

'The foregoing decisions . . . show the trend of judicial opinion is to invoke the doctrine of implied warranty of fitness in cases involving Sales of new houses by the builder. The old rule of caveat emptor does not satisfy the demands of justice in such cases. The purchase of a home is not an everday transaction for the average family, and in many instances is the most important transaction of a lifetime. To apply the rule of caveat emptor . . . in favor of a builder who is daily engaged in the business of building and selling houses, is manifestly a denial of justice. . . .' (Emphasis supplied)

South Dakota agreed in Waggoner v. Midwestern Development, Inc., 1967, 83 S.D. 57, 154 N.W.2d 803:

'It may be assumed for the purpose of decision that the doctrine of caveat emptor applies generally to sales of real property . . . There is, however, a notable lack of harmony in decisions as to the existence of an...