Gonzalez v. Barrenechea
| Decision Date | 21 January 2015 |
| Docket Number | No. 3D12-3430,No. 3D13-987,3D12-3430,3D13-987 |
| Court | Florida District Court of Appeals |
| Parties | R. Randy Gonzalez, Appellant/Cross-Appellee, v. Carlos M. Barrenechea, etc., et al., Appellees/Cross-Appellants. |
Not final until disposition of timely filed motion for rehearing.
Appeals from the Circuit Court for Miami-Dade County, Jerald Bagley, Judge.
Coffey Burlington P.L., and Kevin C. Kaplan, for appellant/cross-appellee.
Cole, Scott & Kissane, P.A., and Scott A. Cole and Anne Sullivan Magnelli, for appellees/cross-appellants.
Before SUAREZ, SALTER, and LOGUE, JJ.
R. Randy Gonzalez ("homeowner") appeals from a final judgment in his action against Ramon Pacheco and his design firm, Ramon Pacheco and Associates, Inc. (collectively, "the Pacheco defendants"). The trial court awarded the homeowner direct damages for his costs in redesigning and replacing the air conditioning system in his newly constructed home, but denied the homeowner's request for loss of use damages for his lost use of the home during the twenty-month period in which the system was replaced. Because the trial court erred in denying loss of use damages, we reverse.
On March 9, 2005, the homeowner and the Pacheco defendants entered into a contract, under which Pacheco and his firm were responsible for the design of the homeowner's new home, including the air conditioning system. After the home was completed, the homeowner discovered that the air conditioning system did not adequately cool the home. As a result, the homeowner could not move into the home. Pacheco was advised of the problems with the air conditioning system, but did not take actions to remedy them.
The homeowner hired a new design firm to address the problems. The air conditioning system was subsequently repaired, requiring a twenty-month process that the homeowner claimed to be destructive, messy, and intrusive. During this period, the homeowner asserted, the home was unsuitable for living.
The homeowner made limited use of the home during the repair period. The homeowner's son slept in the home intermittently, serving as a de-facto security guard and allowing the construction crews access to the home when necessary. The homeowner also docked his boat behind the home, parked his cars in the garage, and stored furniture that had been purchased for the home inside the home.
On August 24, 2010, the homeowner filed a complaint against the Pacheco defendants and others for the negligent and defective design of the air conditioning system. With respect to the Pacheco defendants, the complaint brought claims of breach of contract, negligence, and negligent misrepresentation.
At trial, the homeowner sought both direct damages for the costs incurred in replacing the faulty air conditioning system and loss of use damages stemming from his inability to move into the home during the repair period. With respect to loss of use damages, the homeowner presented the testimony of Britt Rosen, a real estate appraiser. Rosen testified that the rental value of the home during the repair period, based on comparable rentals in the area, was $15,500 per month. On cross-examination, Rosen admitted that he was unaware of the limited uses that the homeowner was making of the home during the repair period—docking his boat, parking his cars, storing his furniture, and allowing his son to sleep in the home intermittently. When asked if there would be a rental value for a home with those uses being made, Rosen testified that "[t]here would be a rental market for it, but itwould be somewhat diminished for that needed garage storage and needed use of the dock." He also admitted that he had not conducted that analysis.
Following a bench trial, the trial court entered a detailed findings of fact and conclusions of law. The trial court concluded that "the preponderance of the evidence at trial was that the System's design was defective, in breach of the [Pacheco] Defendants' legal obligations." The trial court found that the homeowner and his family "were unable to move into the home during this 20 month period." The trial court awarded the homeowner $77,919 in direct damages for the redesign and repair of the air conditioning system. The trial court denied loss of use damages, however, finding that such damages were "not supported by the evidence." Specifically, the trial court noted that Rosen had admitted on cross-examination that his opinion was based on "flawed assumptions," because he had not taken the homeowner's limited uses of the house during the repair period into account in his damage calculation. The trial court added that Rosen had admitted that the rental value would be lower for the home, considering these uses. The trial court expressed concern that to award the homeowner loss of use damages would permit the homeowner a windfall.
The trial court entered a final judgment reflecting these damages. On rehearing, the homeowner sought as alternative relief to reopen the case to permithim to present evidence of these adjustments. The trial court denied rehearing on this point. These timely appeals followed.1
The primary issue presented on appeal is whether the trial court erred in finding the loss of use damages too speculative because the homeowner's expert did not consider the homeowner's limited use of the home during the repair period to adjust the damage calculation. Because the expert's testimony met the homeowner's burden with respect to establishing these types of damages, the trial court erred in denying loss of use damages.
Under Florida law, a homeowner that loses the use of a structure because of delay in its completion is entitled to damages for that lost use. Russo v. Heil Constr., Inc., 549 So. 2d 676, 677 (Fla. 5th DCA 1989). Florida courts have held that "[d]amages for delay in construction are measured by the rental value of the building under construction during the period of delay." Fisher Island Holdings, LLC v. Cohen, 983 So. 2d 1203, 1204 (Fla. 3d DCA 2008); see also Vanater v. Tom Lilly Constr., 483 So. 2d 506, 508 (Fla. 4th DCA 1986) ().
In this case, the homeowner provided Rosen's estimation of the reasonable rental value of the home to establish the amount of loss of use damages. Rosen used the rental values of three comparable properties to establish the reasonable rental value of the home during the repair period. This testimony was sufficient to constitute a prima facie case for the value of the lost use of the home during the repair period. See Fisher Island Holdings, 983 So. 2d at 1204.
There are undoubtedly instances where an expert's testimony on loss of use damages would be unreliable, such as where the "comparable" properties are not truly comparable or where the expert fails to make necessary adjustments to take into account significant differences between the home at issue and the comparable homes. But that is not the case here. The Pacheco defendants did not challenge the properties Rosen used as the comparable properties in his analysis, or the adjustments that Rosen made to determine the reasonable rental value of the home at issue, assuming that the entire home was available for rental.
The Pacheco defendants, instead, challenged Rosen's damage calculation as lacking adjustments for four limited uses that the homeowner had made of the property during the repair period—storing furniture in the home, parking cars in the garage, docking a boat behind the home, and allowing his son to sleep in the home intermittently to serve as a de-facto security guard. We note that none are so large as to negate the rental value arrived at by Rosen. And, significantly, had thehomeowner not made these limited uses of the home during the repair period, each use would likely have been subject to a counter-adjustment. For example, if the furniture, boat, and cars were not stored at the home, the homeowner would likely have had to pay to store these items elsewhere.
Most importantly though, once the homeowner had established his prima facie case of loss of use damages, the burden of proof shifted to the Pacheco defendants to establish any set-off. Fla. Farm Bureau Cas. Ins. Co. v. Mathis, 33 So. 3d 94, 97 (Fla. 1st DCA 2010); Azemco, Inc. v. Brown, 553 So. 2d 1245, 1246 (Fla. 3d DCA 1989). Here, the Pacheco defendants merely highlighted during Rosen's cross-examination that Rosen had not considered these adjustments in his damage calculation—they neither presented evidence of the value of these adjustments nor cooperated with the homeowner in his attempt to reopen his case to present such evidence. Because the homeowner presented a sufficient prima facie case of loss of use damages, the Pacheco defendants could not defeat this claim by highlighting missing adjustments for which the Pacheco defendants did not present any evidence of value.
Although an award of the full amount of loss of use damages claimed by the homeowner here would arguably result in a small windfall to the homeowner, because that damage calculation does not account for adjustments for his limited use of the home during the repair period, we analogize this situation to the ruleused with respect to payments to a tort plaintiff from a collateral source. In these situations, the defendant tortfeasor is not entitled to a set-off for such payments, to prevent the defendant tortfeasor from getting a windfall. Restatement (Second) of Torts § 920A cmt. b (1979) ("[I]t is the position of the law that a benefit that is directed to the injured party should not be shifted so as to become a windfall for the tortfeasor."); see also Robert E. Owen & Assocs., Inc. v. Gyongyosi, 433 So. 2d 1023, 1025 (Fla. 4th DCA 1983).
Here too, although the Pacheco defendants may have been...
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