JOHN C. CHOTKA, APPELLANT,
v.
FIDELCO GROWTH INVESTORS, A PENNSYLVANIA BUSINESS TRUST AND HOWARD C. PETERSEN, ROBERT D. BERNHEIM, MATTHEW B. WEINSTEIN, JAMES B. SMITH, HARRY A. GENTNER, JAMES W. BRYANT, EDWARD E. LIND, HENRY A. GLADSTONE, ARNO E. KRUMBIEGEL, AND RAYMOND L. MILLER, JR., AS TRUSTEES OF FIDELCO GROWTH INVESTORS AND INDIVIDUALLY, APPELLEES; DIAMOND ISLE CONDOMINIUM ASSOCIATION, INC., A NONPROFIT FLORIDA CORPORATION, APPELLANT, V. FIDELCO GROWTH INVESTORS, ETC., ET AL., APPELLEES

Fla. 2d DCA | 1980-06-04
Nos. 79-1599, 79-1600
GRIMES, C. J., and SCHEB, J., concur.
383 So. 2d 1169 Florida District Court of Appeal, Second District (1980) Positive Treatment
Cited by 13 cases

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Synopsis

Appellants sued Fidelco Growth Investors and its trustees for construction defects in a condominium project. The trial court dismissed the complaints, finding Fidelco was merely a construction lender without liability. The appellate court reversed, holding that once Fidelco took title through foreclosure, completed construction, and marketed units as a developer, it became liable for construction defects and breach of warranties.


Holding

Once Fidelco took title, completed construction, and held itself out as the developer while advertising and selling units, it became a developer to the extent it could be held liable for express representations made to buyers, patent construction defects in the project, and breach of warranties applicable to defects in portions it completed. The trial court's dismissal was therefore improper.


Headnotes

[1] A construction lender who forecloses on a project, takes title, completes construction, and then advertises and sells units may be held liable as a developer for express…

[2] A construction lender is generally not liable for construction defects unless it takes title to the project, completes construction, and holds itself out as the developer…

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Key Quotes

“a lender is not under any duty to inspect the progress of construction for the benefit of anyone other than itself and may not be held liable for construction defects”

Establishes the general rule that construction lenders have limited liability, which the court then distinguished.

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Facts & Procedural History

Fidelco Growth Investors was a construction lender on the Diamond Isle Condominium project. After the original developer defaulted, Fidelco foreclosed…

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Opinion of the Court
CAMPBELL, Judge.

CAMPBELL, Judge.

The trial court dismissed with prejudice the complaints of appellants Chotka and Diamond Isle Condominium Association (the Association) against appellees Fidelco Growth Investors and the trustees thereof, and these appeals ensued. We reverse.

Each appellant filed a separate amended complaint against appellees seeking damages for defects or omissions in the construction of the Diamond Isle Condominium building and common areas. Appellees were alleged to be the developer of the condominium project. Appellees filed motions to dismiss the amended complaints, one of the grounds for which was that appellees were not alleged to be the builder of the condominium or the areas alleged to have defects. Appellees also filed a motion for summary judgment on the grounds, inter alia, that they were the construction lender with no interest in the original construction of the condominium; that they foreclosed after the original developer had defaulted on the loan and after the project had been completed except for the swimming pool, tennis court, lobby, game room, elevator lobbies, and two sauna baths, which they completed; and that they were unaware of any construction or design defects at the time they purchased at the foreclosure sale. Appellees also filed an affidavit by J. Douglas Wallace, assistant vice president of Latimer & Buck Advisors, Inc., who participated in all phases of the foreclosure and sale of the condominium project in question. Wallace averred that at the time of the foreclosure all common elements other than those specifically mentioned above had been completed, and the individual units needed only to be finished “according to such directions as unit purchasers would give.”

After hearing, the trial court dismissed with prejudice appellants’ causes of action based on implied warranty. The dismissals were for the reason that the Court finds, pursuant to stipulation, that the defendants, FIDELCO GROWTH INVESTORS, a Pennsylvania Business Trust, et al, [sic] was not the original builder-developer but was a construction money lender who acquired title from the original builder-developer through foreclosure proceedings following substantial completion of the condominium development by the original builder-developer and thereafter defendants, FIDELCO GROWTH INVESTORS, a Pennsylvania Business Trust, et al, [sic] prepared and furnished the development for sale purposes and did complete the sale of the units. .

This court held in Rice v. First Federal Savings & Loan Association, 207 So. 2d 22 (Fla.2d DCA), cert. denied, 212 So. 2d 879 (Fla.1968), that a lender is not under any duty to inspect the progress of construction for the benefit of anyone other than itself and may not be held liable for construction defects. Accord, Armetta v. Clevetrust Realty Investors, 359 So. 2d 540 (Fla.4th DCA), cert. denied, 366 So. 2d 879 (Fla.1978); Schaeffer v. Gilmer, 353 So. 2d 847 (Fla.1st DCA 1977). However, appellees became more than just a lender when they took title to the condominium project, completed construction, and, holding themselves out to be the developer and owner of the project, advertised and sold units to purchasers. See First Wisconsin National Bank v. Roose, 348 So. 2d 610 (Fla.4th DCA 1977). At that point, while recognizing that this was a common law action for implied warranty, and not an action under Chapter 718, Florida Statutes, we think appellees became a developer of the project to the extent that they may be held liable for performance of express representations made to the buyer, for patent construction defects in the entire condominium project and for breach of any applicable warranties due to defects in the portions of the project completed by appel-lees.

Accordingly, the trial court’s order dismissing the complaints with prejudice is REVERSED and the cause REMANDED for further proceedings consistent with this opinion.

GRIMES, C. J., and SCHEB, J., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Jasma Corp. v. Cap. Bank, 644 So. 2d 515 (Fla. 3d DCA 1994)
    …P. 2d at 188; Tokarz, 656 P. 2d at 1089; Hutson, 588 P. 2d at 1192. Where the lender has voluntarily assumed additional roles, accompanying responsibilities properly follow. See Tokarz, 656 P. 2d at 1089; see also Chotka v. Fidelco Growth Investors, 383 So. 2d 1169 (Fla. 2d DCA 1980). II We next conclude that the conduct of the bank did not descend to the level of actual fraud. The record does not establish that the bank made a deliberate and knowing misrepresentation designed to cause, and actually causing…
  • Strickland-Collins Constr. v. Barnett Bank OF Naples, 545 So. 2d 476 (Fla. 2d DCA 1989)
    …sly intended to be for the sole and exclusive benefit of lender. Typically, a lender is sued by an unpaid contractor who alleges the lender exercised excessive control and effectively became a joint venturer. See Chotka v. Fidelco Growth Investors, 383 So. 2d 1169 (Fla. 2d DCA 1980). In this case, the general contractor takes the opposite approach and argues that the lender should be liable because it had an obligation to exercise greater control over the project and the owner’s disbursement of funds. This co…
  • N. Am. Mortg. Invs. v. The Reef Club Condo. Ass'n, 469 So. 2d 930 (Fla. 3d DCA 1985)
    …PER CURIAM. Affirmed. See Chotka v. Fidelco Growth Investors, 383 So. 2d 1169 (Fla. 2d DCA 1980).…

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