Klinger v. Zaremba Florida Co., 84-2066

• Decision Date: 28 January 1986
• Docket Number: No. 84-2066,84-2066
• Citation: 502 So.2d 1252,11 Fla. L. Weekly 288
• Parties: 11 Fla. L. Weekly 288, 12 Fla. L. Weekly 90 Joan KLINGER, Barbara Klinger, Robert Novak, Edith Novak, Irving Heller, Barbara Leonard, Marc Gellman, Jill Turner, Ruth Perleman, Ralph Jacobson, Beatrice Jacobson, Harold L. McGee, Dorothy McGee, Murray Hirsh, Zina Hirsh, Asbjoern Askvik, Janet Askvik, Giorgio Espinosa, Yamille Espinosa, Stanley Esratz, Riate Esratz, Maurice Fixel, Dorothy Fixel, Gerri Newberg, Mary Certo, Giovanni Tummolillo, Elena Tummolillo, Paul Pavilack, Helene Caron, Jay Rios, H. Enriquez Ghimenti, Arnold Gordaesky, Phyllis Gordaesky, Jack Silver, Blanche Silver, James Parish, Joan Murphy Welsh, Jack Yosha, Georgeann Yosha, Leonard Perleman, Appellants, v. ZAREMBA FLORIDA COMPANY, an Ohio corporation and Sentinel Communities, Inc., a Florida corporation, Appellees.
• Court: Florida District Court of Appeals

Page 1252

502 So.2d 1252

11 Fla. L. Weekly 288, 12 Fla. L. Weekly 90

Joan KLINGER, Barbara Klinger, Robert Novak, Edith Novak, Irving Heller, Barbara Leonard, Marc Gellman, Jill Turner, Ruth Perleman, Ralph Jacobson, Beatrice Jacobson, Harold L. McGee, Dorothy McGee, Murray Hirsh, Zina Hirsh, Asbjoern Askvik, Janet Askvik, Giorgio Espinosa, Yamille Espinosa, Stanley Esratz, Riate Esratz, Maurice Fixel, Dorothy Fixel, Gerri Newberg, Mary Certo, Giovanni Tummolillo, Elena Tummolillo, Paul Pavilack, Helene Caron, Jay Rios, H. Enriquez Ghimenti, Arnold Gordaesky, Phyllis Gordaesky, Jack Silver, Blanche Silver, James Parish, Joan Murphy Welsh, Jack Yosha, Georgeann Yosha, Leonard Perleman, Appellants, v.ZAREMBA FLORIDA COMPANY, an Ohio corporation and Sentinel Communities, Inc., a Florida corporation, Appellees.

No. 84-2066.

District Court of Appeal of Florida Third District.

Jan. 28, 1986.

On Rehearing Dec. 30, 1986.

Rehearing Denied Feb. 25, 1987.

Richard J. Burton, Miami, and Ann Mason Parker, Coral Gables, for appellants.

Layne, Bernstein & Brenner and Richard Bernstein and Susan J. Jacobs, Miami, for appellees.

Before BARKDULL, BASKIN and FERGUSON, JJ.

PER CURIAM.

The purchasers of condominium units in phases I and II of a IV phase condominium project, being developed pursuant to Section 718.403, Florida Statutes(1979), brought an action to enjoin the developers from constructing phases III and IV other than as shown in the original prospectus.They also sought to rescind pursuant to the provisions of Section 718.506, Florida Statutes(1979).A special master, after receiving evidence, found, among other things, that the purported development in Units III and IV was in "substantial compliance" with the original phase plan of development.The Condominium Act recognizes the right to construct in phases.¹ The condominium documents permit a change in the future unit phase development as long as such alterations of plans are in "substantial compliance" with the original.²The proper officials of Dade County found that the proposed changes were in "substantial compliance" as did the special master.This finding and conclusion was ratified and confirmed by the trial judge.We find no error and affirm.Groover v. Adiv Holding Company, 202 So.2d 103(Fla. 3d DCA1967);Daniels v. Lake Pleasant Land Company, Inc., 193 So.2d 679(Fla. 4th DCA1967);Dade County v. Trombly, 102 So.2d 394(Fla. 3d DCA1958).

As to the allegedly misleading advertisements and the rights under Section 718.506, Florida Statutes(1979), it is clear from the record that the advertising was not misleading at the time it was made and as aforesaid, the documents and the statutes permitted a change in Units III and IV, therefore no merit is found in claims under this statute.

We have examined the points raised on the cross appeal and find no merit therein.Chomont v. Ward, 103 So.2d 635(Fla.1958);Jackson v. Riley, 427 So.2d 255(Fla. 5th DCA1983);Procacci v. Zacco, 402 So.2d 425(Fla. 4th DCA1981);Berwick Corp. v. Kleinginna Investment Corp., 143 So.2d 684(Fla. 3d DCA1962).

The final judgment under review be and the same is hereby affirmed.

Affirmed.

ON MOTION FOR REHEARING

FERGUSON, Judge.

Appellants, owners of units in a townhouse development, contend that the developers' elimination of certain recreational facilities was, contrary to the trial court's finding, a substantial deviation from the original development plans.

Misty Lake South Condominium (Misty Lake) is a phase condominium project developed according to section 718.403, Florida Statutes(1979).The entire development was planned for completion in four phases.Phases I and II, where the unit owners live, consist of townhomes ranging in size from 1,000 to 1,600 square feet.These units were sold pursuant to condominium documents which represented that phases III and IV would, if constructed, be in substantial compliance with the plans on file with the appropriate governmental agency.The plans on file were those for phases I and II and they included, as recreational facilities, a jogging path and VITA course ¹ around the lake.Relying on those representations, the owners bought units in phases I and II of Misty Lake.

The developers then altered their plans and, in place of phases III and IV of Misty Lake, built McArthur Park, a condominium with smaller units (667 to 877 square feet instead of the 1,000 to 1,600 square feet found in Misty Lake), different configurations, and lower prices.The construction of McArthur Park also totally eliminated the jogging path and VITA course around the lake.

The unit owners, claiming that these alterations were not in "substantial compliance" with the plans on file, brought an action to enjoin the developers from constructing McArthur Park.They also sought to rescind their contracts pursuant to the provisions of section 718.506, Florida Statutes(1979).The special master who heard the action found for the developers, ruling that the alterations were in "substantial compliance" with the original plans.The unit owners filed, in the circuit court, exceptions to the Special Master's Report.The unit owners' exceptions to the special master's findings were rejected by the circuit court.In this appeal the unit owners contend that the special master incorrectly found that the development of McArthur Park and the elimination of the jogging path and VITA course were not a substantial deviation from the original plan.

We are persuaded that there is merit in the unit owners' claims under section 718.506, Florida Statutes(1979), that they were misled by the developers' advertisements showing recreational areas as part of the condominium...