THEODORE S. KONOVER, ETC., ET AL., APPELLANTS,
v.
ARTHUR HOCHMAN AND LORRAINE HOCHMAN, HIS WIFE, APPELLEES
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The jury's calculation of the money verdict in favor of the home buyer against the seller builder was incorrect due to inclusion of items excluded by warranty and unclear patio repair scope.
A new home buyer sued the seller builder for defects. The jury awarded damages, including amounts for a pool system defect and driveway repair, which …
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LETTS, Judge.
The question presented is whether the jury correctly calculated a money verdict in favor of a new home buyer and against the seller builder. We conclude its calculations were incorrect.
As we view it, extensive treatment of this case will add nothing to the body of the law and we write sparingly only to explain our conclusion.
The warranty furnished by the seller specifically excluded driveways, walkways, patios and swimming pools. Yet the ver-diet included $2,000 to correct a pool system defect and $810 for the driveway. Both these amounts must be deducted.
The repair to the patio is more difficult to resolve, for, although patios were also excluded, the seller specifically agreed to reset tiles around the pool area which pool area is contained within the perimeter of the patio replaced. Nonetheless, the seller clearly did not intend to pay for the entire patio retiled by another company, nor did he agree to do so. We remand this patio item and direct the judge to also reduce the amount of the verdict as to this item, charging the seller only with any sums expended to “reset tiles around the pool” which have not already been paid.
Finally, as to interest on the purchase money mortgage, the seller is entitled to interest, from the date of the note, on any sums which remain owing to the seller after our instructions are carried out.
REVERSED IN PART AND REMANDED.
DOWNEY and HERSEY, JJ., concur.
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Tillman v. Howell, 634 So. 2d 268 (Fla. 4th DCA 1994)…isfactory and the structure defective, there was a failure of consideration. The amount due on the promissory note should have been reduced by the construction damages before computation of an amount for prejudgment interest. See Konover v. Hochman, 439 So. 2d 994 (Fla. 4th DCA 1983). See also, semble, Manning v. Clark, 89 So. 2d 339 (Fla.1956). As to this point on appeal we reverse. The trial court refused to permit the Tillmans to recover prejudgment interest because it was not pled. The cases cited in sup…
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Portela Invs., Inc. v. Piedra, 789 So. 2d 1014 (Fla. 3d DCA 2000)…hat particular damage. Consequently, that portion of the judgment awarding damages for that “defect” is vacated. The cause is- remanded to the trial court to either order a remittitur or enter a judgment based upon the record. See Konover v. Hochman 439 So. 2d 994, 995 (Fla. 4th DCA 1983). Affirmed in part, reversed in part, and remanded.…