Slitor v. Elias, 88-02042

• Decision Date: 12 May 1989
• Docket Number: No. 88-02042,88-02042
• Citation: 14 Fla. L. Weekly 1183,544 So.2d 255
• Parties: 14 Fla. L. Weekly 1183 Robert P. SLITOR and Doreen M. Slitor, Appellants/Cross-Appellees, v. Colleen M. ELIAS, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

Page 255

544 So.2d 255

14 Fla. L. Weekly 1183

Robert P. SLITOR and Doreen M. Slitor, Appellants/Cross-Appellees, v. Colleen M. ELIAS, Appellee/Cross-Appellant.

No. 88-02042.

District Court of Appeal of Florida Second District.

May 12, 1989.

Leslie T. Ahrenholz, Fort Myers Beach, for appellants/cross-appellees.

Robert P. Henderson of Simpson, Henderson, Savage & Carta, Fort Myers, for appellee/cross-appellant.

LEHAN, Judge.

The sellers of a house appeal a judgment adverse to them in the buyer's action for damages based upon the sellers' failure to disclose defects in a swimming pool. The buyer cross-appeals the amount of damages awarded. We reach neither the points raised on the cross-appeal, nor four of the five points raised on the main appeal. We reverse on the basis of the sellers' first point--that the evidence was insufficient to establish their liability. As we will explain, there was insufficient evidence that the sellers had knowledge of defects materially affecting the value of the property, as required by Johnson v. Davis, 480 So.2d 625 (Fla.1985).

The buyer's complaint concerned two alleged defects in the swimming pool. A description of the structure of the pool is necessary to an understanding of the complaint. The pool, which had been installed by the sellers about six years prior to this sale, has a fiberglass, in-ground hull. The four-inch thick concrete decking on the ground surface surrounding the pool slightly overlaps the top edge of the hull wall. The inside top portion of the wall is surfaced with two horizontal rows of decorative ceramic tiles. The tiles on the upper row are four-and-one-quarter inches high. Thus, the upper row of tiles, which is separated from the lower row of tiles by a line of grout, extends down to a level approximately even with the level at which the bottom of the concrete decking meets the top of the hull.

The major defect complained of was a crack between the upper and lower rows of tiles through which the pool water could leak out over the top edge of the hull and also cause some of the decorative tiles to break or fall off. The crack apparently resulted from the hull having settled, particularly in the pool's deep end. The settling had caused the hull to pull away from the concrete decking. The other defect was that the paint on the underwater surface of the pool was flaking off, thus causing the pool filter to become clogged and making it impossible to maintain a proper chemical balance in the pool.

The law in Florida currently is that "where the seller of a home knows of facts materially affecting the value of the property which are not readily observable and are not known to the buyer, the seller is under a duty to disclose them to the buyer." Johnson, 480 So.2d at 629. In this case the buyer contends that the sellers knew of the defects in the swimming pool; that those defects materially affected the value of the property; that the defects were not readily observable and were, in fact, not observed by the buyer during her several visual inspections of the property prior to her purchase, at which times the pool appeared to be in satisfactory condition; and that the sellers never disclosed the pool defects.

On appeal the sellers contend that the buyer failed to present substantial, competent evidence to support liability of the sellers under Johnson. We agree that the evidence and inferences therefrom, even when construed most favorably to the buyer, fail to meet established evidentiary standards sufficiently to prove that the sellers knew of "facts materially affecting the value of the property" as required by Johnson.

The buyer testified that the first problems she encountered with the pool, which occurred within about two weeks following her October 29, 1985 purchase of the house, were cloudiness of the pool water and an inability to maintain a proper chemical balance of the water, problems she later discovered were caused by the paint on the underwater surface of the pool. She testified that at the time of the purchase she did not observe any cracks in the tiles or grout, but that the above described crack began appearing by late December 1985 and worsened from then on.

Concerning the crack and the water leakage, the buyer's expert witness testified that in his opinion the settling of the pool and the resulting crack would have taken longer than three months to occur, but he could not say whether it had taken six months or a year or a couple of years. The evidence showed that the house was vacant for the ten-month period preceding the sale (although the sellers had visited the property every week or two to check on it and to do such things as gardening). The expert first viewed the pool about six months after the sale. When asked his opinion about whether the sellers knew or should have known about the crack in the pool, the expert stated that sixteen months (the period between the time the sellers moved out of the house and the time of the expert's first view of the pool) was a "considerable amount of time" and that he would not say whether the crack was or was not there prior to that time. However, he testified that his inspection of the pool revealed that the crack had previously been repaired by use of a caulking material applied to cover the crack. He could not state when this material had been applied, other than that it had been "a long time" after the pool...