Hurley v. Conklin
| Decision Date | 27 January 1982 |
| Docket Number | No. 79-15,79-15 |
| Citation | 409 So.2d 148 |
| Parties | Faye Y. HURLEY and Raymond S. Hurley, Appellants, v. Donald J. CONKLIN, et ux. Carriage Hill Limited Partnership, etc., et al., Appellees. |
| Court | Florida District Court of Appeals |
Jerry Oxner of Oxner, D'Angio & Brown, West Palm Beach, for appellants.
A. Koski, Boca Raton, and Robert S. Levy of Law Offices of Robert S. Levy, P. A., West Palm Beach, for appellee-Charles P. Houston, court appointed Receiver of Carriage Hill Ltd. Partnership, and Arthur C. Koski of Koski, Mateer & Gillespie, Boca Raton, for appellees, Conklin, Dickinson, Titus, Lunsford, Florida Vantage Properties, Inc., and Fargo Long Corp.
Appellants, Faye Y. Hurley and Raymond S. Hurley, seek review of a final judgment which found them ultimately liable for damages for breach of implied warranty arising out of the sale of subdivision lots that had been improved with a seawall. Carriage Hill Limited Partnership filed a "cross-appeal," which in reality is a joinder in appeal, seeking review of the same final judgment which found Carriage Hill immediately liable for breach of implied warranty.
The record reflects that appellee Carriage Hill Limited Partnership was the developer of a subdivision in Boca Raton, Florida. During the course of development, in July 1972, Carriage Hill employed P and H Seawall & Piling Co. to construct 7100 lineal feet of seawall abutting the lots in question in this case. In January 1974 the seawall collapsed during a period of heavy rainfall.
In 1971 and 1972 Carriage Hill entered into contracts for the sale of the lots involved in this suit. All of those contracts, except one, were assigned to third parties so that only one ultimate purchaser who received a deed to the property was the original contract purchaser. When the contracts from Carriage Hill were assigned, the assignee also entered into a new contract with the assignor. However, when the sale was closed a deed was delivered by Carriage Hill to the ultimate assignee and legal title passed from the former to the latter without intervening transfers. The consequence is that plaintiff-appellees were in privity with Carriage Hill and had standing to enforce any implied warranty evolving out of the contracts and sales.
After the seawall collapsed, the five appellees who had taken title to lots filed actions against Carriage Hill for breach of an implied warranty of fitness. In turn, Carriage Hill brought in Mr. and Mrs. Hurley as third party defendants in a claim for indemnity for any damages Carriage Hill might have to pay as a result of the actions against it. In an extensive, well considered judgment, the trial court found that there was an implied warranty of fitness, which had been breached, and that the warranty extended to appellees. The court further found that Carriage Hill was entitled to be indemnified by appellants because of the manner in which appellant Raymond Hurley operated P & H Seawall & Piling Company.
Although there are numerous questions presented by this appeal, the main ones involve the validity of the trial judge's findings that there was an implied warranty involved in the sale of the property in question and that it extended to the appellee-vendees in this case.
By way of background, we note that at common law the doctrine of caveat emptor applied to the sale of both real and personal property. Eventually that doctrine was abandoned with regard to the sale of chattels, but it has retained its vitality generally with regard to the sale of realty. Some inroads, however, have been made in the area of real property by the application of covenants of implied warranty to the sale of new residences.
The seminal case in Florida applying implied warranties to the sale of new residential real estate is Gable v. Silver, 258 So.2d 11 (Fla. 4th DCA 1972), affirmed 264 So.2d 418 (Fla.1972). The Gable case noted that the general rule still pertaining in a majority of jurisdictions is that implied warranties do not apply to the sale of realty. However, recognizing that the rule was fast being eroded in the area of new residential construction, the court held the "modern rule" to be that implied warranties do extend to the sale of residences. The rationale of the modern view seems to be that caveat emptor should no longer be applied to the sale of new residential realty because that doctrine does not satisfy the demands of justice in such cases. The reasons are set forth in Cook v. Salishan Properties, Inc., 279 Or. 333, 569 P.2d 1033, 1034-1035 (1977), as follows:
In Yepsen (v. Burgess, 269 Or. 635, 525 P.2d 1019 (1974) ) we noted and followed a trend in other jurisdictions toward the recognition of an implied warranty in the sale of new houses, and summarized the justifications for that recognition as follows:
269 Or. at 639-40, 525 P.2d at 1022. These justifications, which we found persuasive in the aggregate in Yepsen, are of two types: a recognition of consumer expectation on the one hand and, on the other, an acknowledgment that buyers of houses, like buyers of other goods, must of necessity rely on the expertise of the builder or manufacturer.
Gable concluded by limiting its purview in stating: "we also realize and memorialize that our facts limit our decisions to the sale of new homes or condominiums."
Subsequent decisions have failed to extend the modern view of Gable beyond its clear parameters. In Burger v. Hector, 278 So.2d 636 (Fla. 1st DCA 1973), the court refused to extend implied warranties to the builder of a new house because the water damage to the house was caused...
To continue reading
Request your trial
-
Conklin v. Hurley
...a home and other improvements immediately supporting the residence thereon, such as water wells and septic tanks? Hurley v. Conklin, 409 So.2d 148, 151 (Fla. 4th DCA 1982). We approve the lower court's refusal to extend implied warranties of fitness and merchantability to the facts at hand ......