Rapallo South, Inc. v. Jack Taylor Development Corp., 78-342

• Decision Date: 29 August 1979
• Docket Number: No. 78-342,78-342
• Citation: Rapallo South, Inc. v. Jack Taylor Development Corp., 375 So.2d 587 (Fla. App. 1979)
• Parties: RAPALLO SOUTH, INC., Appellant, v. JACK TAYLOR DEVELOPMENT CORPORATION, Appellee.
• Court: Florida District Court of Appeals

Page 587

375 So.2d 587

RAPALLO SOUTH, INC., Appellant, v. JACK TAYLOR DEVELOPMENT CORPORATION, Appellee.

No. 78-342.

District Court of Appeal of Florida, Fourth District.

Aug. 29, 1979.

Rehearing Denied Oct. 29, 1979.

Edna L. Caruso, P. A., Montgomery, Lytal, Reiter, Denney & Searcy, P. A., and Richard D. Schuler of Schuler & Wilkerson, West Palm Beach, for appellant.

Ronald Sales, Palm Beach, for appellee.

LETTS, Judge.

This appeal comes to us from an order dismissing a third amended complaint with prejudice, predicated on failure to state a cause of action. We reverse.

This is yet another of the never ending series of disputes between condominium residents and their developers. The complaint consisted of three counts: breach of contract, breach of implied warranty and negligence. A reading of it reveals allegations of a myriad of shortcomings and defects caused by unsatisfactory construction of the common elements.

The developer's defense is simple and concerns itself with a paragraph contained in each and every purchase agreement. It reads as follows:

XI. ACCEPTANCE OF PROJECT AND WARRANTIES

At such time as a Certificate of Occupancy has been issued by the City of West Palm Beach with respect to the building constructed on the premises, and when the Seller has caused the building to be furnished and equipped with the items described and set forth on Exhibit 2, the Seller's obligations to the Purchaser and to the condominium association shall, except as hereinafter provided, cease and come to an end. It is understood and agreed that the Seller shall, for a period of one year from the date of the Certificate of Occupancy, continue to remain responsible to the Purchaser and the Condominium Association for the correction of all defective work occasioned and resulting from the use of defective materials and/or poor workmanship in the construction of the building. The Seller agrees that to the extent that the same are transferable it will transfer to the Condominium Association for its benefit and the benefit of the Purchaser all warranties which may be furnished by such contractors and material suppliers. (emphasis supplied)

The lower court's order does not set forth the specific reason for the dismissal, but the motion to dismiss alleges that:

The contract provides a one year express warranty in lieu of all other obligations and duties of the defendant. The plaintiff is disabled from bringing an action of implied warranty or negligence but is limited to an action for breach of express warranty.

From this we conclude that, either the judge found the language of the purchase agreement sufficient to constitute a disclaimer, or that the complaint was inadequate for failure to allege that the defects surfaced within one year from the date of the certificate of occupancy.

We see no material difference between the above quoted and emphasized language from the purchase agreement and the...