BISCAYNE ROOFING CO., A FLORIDA CORPORATION, APPELLANT,
v.
PALMETTO FAIRWAY CONDOMINIUM ASSOCIATION, INC., A FLORIDA CORPORATION, PORTER-RUSSELL, A FLORIDA CORPORATION, AND EVERETT S. EMERSON, A FLORIDA CORPORATION, APPELLEES
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Biscayne Roofing substituted materials without authorization when installing a roof on a condominium, causing defects discovered later. The court affirmed the finding of liability for breach of warranty and negligent construction, but reversed the trial court's award of attorney's fees as inadequately supported by the record.
Biscayne is liable for breach of express warranty and implied warranties of fitness and merchantability, as well as for negligent construction. Porter-Russell and Emerson may be held vicariously liable with indemnification flowing to the at-fault party. The trial court's attorney's fees award of $10,000 was an abuse of discretion unsupported by the record.
[1] A subcontractor is liable for damages resulting from the substitution of materials without authorization.
[2] A subcontractor's unauthorized substitution of materials constitutes a breach of express and implied warranties.
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Join FLexlaw to unlock all legal intelligence“We concur in the trial court's finding that Biscayne breached its express warranty as well as its implied warranties of fitness and merchantability.”
Establishes that Biscayne is liable for breach of multiple warranty theories due to material substitution
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Join FLexlaw to unlock all legal intelligenceBiscayne Roofing, a subcontractor, installed a roof on Palmetto Fairway Condominium but substituted materials without authorization. The substitution …
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BASKIN, Judge.
We affirm the portion of the amended final judgment which found subcontractor Biscayne Roofing liable for damages related to the replacement of a roof it installed on Palmetto Fairway Condominium. The damages resulted from Biscayne’s substitution of materials without authorization. Upon discovering the defect, and within the applicable period of limitations,1 section 95.-ll(3)(c), Florida Statutes (1975), the condominium association filed an action based upon negligence and breach of warranties.
We concur in the trial court’s finding that Biscayne breached its express warranty as well as its implied warranties of fitness and merchantability. Accord Green-way Village South Condominium Associations I, II, III & IV, Inc. v. Roach, 397 So. 2d 954 (Fla. 4th DCA), pet. for rev. denied sub nom. Integon General Insurance Corp. v. Greenway Village South Condominium Associations I, II, III & IV, Inc., 408 So. 2d 1093 (Fla. 1981).
We also agree that Biscayne is liable for its negligent construction. See Navajo Circle, Inc. v. Development Concepts Corp., 373 So. 2d 689 (Fla. 2d DCA 1979); Simmons v. Owens, 363 So. 2d 142 (Fla. 1st DCA 1978).
Although damages may also be recovered from a developer for negligent construction of a condominium, see Drexel Properties, Inc. v. Bay Colony Club Condominium, Inc., 406 So. 2d 515 (Fla. 4th DCA 1981); Parliament Towers Condominium v. Parliament House Realty, Inc., 377 So. 2d 976 (Fla. 4th DCA 1979), the court found that Porter-Russell, the owner-developer of the condominium engaged in no independent act of negligence.
Nevertheless, the court determined that Porter-Russell was vicariously liable to Palmetto for Biscayne’s negligence; that Emerson, the general contractor, was vicariously liable to Porter-Russell for Biscayne’s negligence; and that Biscayne therefore must indemnify Emerson, which in turn must indemnify Porter-Russell. General Portland Land Development Co. v. Stevens, 395 So. 2d 1296 (Fla. 4th DCA 1981); Atlantic Coast Development Corp. v. Napoleon Steel Contractors, Inc., 385 So. 2d 676 (Fla. 3d DCA 1980).
Indemnification is appropriate when the indemnitees are faultless and the indemnitor is at fault. General Portland Land Development Co. v. Stevens, supra; accord Houdaille Industries, Inc. v. Edwards, 374 So. 2d 490 (Fla. 1979); Atlantic Coast Development Corp. v. Napoleon Steel Contractors, Inc., supra; see F & R Builders v. Lowell Dunn Co., 364 So. 2d 826 (Fla. 3d DCA 1978), cert. denied, 372 So. 2d 468 (Fla. 1979).
With regard to the cross-appeal, we find error in the amount of attorney’s fees awarded. Unrebutted expert testimony called for an award between $19,000 and $25,000. The trial court’s award of $10,000 is not supported by the record and constitutes an abuse of discretion. We reverse under the authority of Marchion Terrazzo, Inc. v. Altman, 372 So. 2d 512 (Fla. 3d DCA 1979); accord March v. March, 395 So. 2d 200 (Fla. 3d DCA 1981); Cowart v. Gilson, 271 So. 2d 821 (Fla. 1st DCA 1973); Canal Authority v. Ocala Manufacturing Ice & Packing Co., 253 So. 2d 495 (Fla. 1st DCA 1971), cert. denied, 259 So. 2d 715 (Fla. 1972). Affirmed in part, reversed in part, and remanded for redetermination of the amount of attorney’s fees.
. We reject Biscayne’s assertion that the leaks gave rise to a cause of action at an earlier date.
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Jackson v. L.A.W. Contracting Corp., 481 So. 2d 1290 (Fla. 5th DCA 1986)…is appeal does not involve any claim against the contractor based on breach of implied warranty of fitness of a particular product for a particular purpose. Therefore, cases such as Biscayne Roofing v. Palmetto Fairway Condominium Association, Inc., 418 So. 2d 1109 (Fla. 3d DCA 1982), and State of Florida, Department of Transportation v. Cone Brothers Contracting Co., 265 So. 2d 63 (Fla. 1st DCA 1972), are inapplicable. The trial court also correctly granted summary judgment in favor of the contractor and aga…
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Saltponds Condo. Ass'n, Inc. v. Walbridge Aldinger Co., 979 So. 2d 1240 (Fla. 3d DCA 2008)…e filed within the general time limits set out in chapter 95, Florida Statutes. Charley Toppino & Sons, Inc. v. Seawatch at Marathon Condo. Ass’n, 658 So. 2d 922, 924 (Fla.1994). In Biscayne Roofing Co. v. Palmetto Fairway Condominium Association, 418 So. 2d 1109, 1110 (Fla. 3d DCA 1982), we stated in dicta that section 95.11(3)(c) of the Florida Statutes provided the “applica [*1243] ble period of limitations” in a case brought by a condominium association against the developer and contractor based upon neg…
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Larsen v. Larsen, 429 So. 2d 725 (Fla. 3d DCA 1983)…rt abused its discretion in setting an inadequate amount of attorney’s fees for Mr. Kayser in this case. Earnest v. Southeastern Fidelity Insurance Co., 422 So. 2d 1092 (Fla. 3d DCA 1982); Biscayne Roofing Co. v. Palmetto Fairway Condominium Ass’n., 418 So. 2d 1109 (Fla. 3d DCA 1982); March v. March, 395 So. 2d 200 (Fla. 3d DCA 1981); Marchion Terrazzo, Inc. v. Altman, 372 So. 2d 512 (Fla. 3d DCA 1979). On remand, the trial court should re-determine the amount of these fees and may, if it so desires, receive a…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (16 total)
- Houdaille Indus., Inc. v. Edwards, 374 So. 2d 490 (Fla. 1979)
- Atl. Coast Dev. Corp. v. Napoleon Steel Contractors, Inc., 385 So. 2d 676 (Fla. 3d DCA 1980)
- Navajo Circle, Inc. v. Dev. Concepts Corp., 373 So. 2d 689 (Fla. 2d DCA 1979)
- Drexel Props., Inc. v. BAY Colony Club Condo., Inc., 406 So. 2d 515 (Fla. 4th DCA 1981)
- Marchion Terrazzo, Inc. v. Altman, 372 So. 2d 512 (Fla. 3d DCA 1979)
- Simmons v. Owens, 363 So. 2d 142 (Fla. 1st DCA 1978)
- Parliament Towers Condo. v. Parliament House Realty, Inc., 377 So. 2d 976 (Fla. 4th DCA 1979)
- The Canal Auth. of the State of Fla. v. Ocala Mfg. ICE & Packing Co., 253 So. 2d 495 (Fla. 1st DCA 1971)
- Gen. Portland Land Dev. Co. & Greater Fla. Inv. v. Stevens, 395 So. 2d 1296 (Fla. 4th DCA 1981)
- March v. March, 395 So. 2d 200 (Fla. 3d DCA 1981)