TREE CONSTRUCTION CORPORATION, A FLORIDA CORPORATION, APPELLANT,
v.
CHARLES W. CAPLINGER AND CHARLECE CAPLINGER, HIS WIFE, APPELLEES
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A Florida appeals court reversed a $11,600 damages award in a construction defects case, holding that the trial court used an improper measure of damages by applying a diminution-in-value standard rather than the cost-of-repair standard. The court remanded for a new trial solely on the damages issue while affirming the finding of liability.
The trial court erred in using diminution in value as the measure of damages rather than cost of repair. Because repair costs would not constitute economic waste, the cost-of-repair measure was the appropriate standard. The case is remanded for a new trial on damages and reassessment of attorney's fees and costs.
[1] In construction defect cases, the proper measure of damages is generally the cost of repair, unless such repairs would constitute economic waste.
[2] Diminution in value is an improper measure of damages in a construction defect case when the cost of repair is not economically wasteful.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“We agree that the court here used an improper measure of damages in resorting to the diminution in value rather than employing the cost of repair.”
Establishes the core holding that the trial court applied the wrong legal standard for calculating damages in a construction defect case.
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Join FLexlaw to unlock all legal intelligenceThe homeowner (Caplingers) countersued the builder/seller (Tree Construction) for construction defects. The trial court denied the builder's foreclosu…
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PER CURIAM.
This is an appeal from a final judgment entered on a counterclaim in a-construction defects case. The counterclaimant was the homeowner and the counterdefendant was the builder and seller of the home. The main action, as originally filed between the parties, also involved a mortgage foreclosure. The trial court denied foreclosure and this ruling is not contested on appeal. The trial court assessed damages in favor of the homeowner and the builder/seller appeals. We reverse and remand for further proceedings.
The trial court was presented with evidence from appellees’ expert that the repair costs and the consequential damages to the home would exceed $20,000. The appellant’s version was to the effect that repairs could be accomplished for approximately $1500. On appeal, both sides argue adamantly as to the believability of the witnesses, their competence and lack of competence, and the reasonableness and unreasonableness of the needed and allegedly unneeded repairs to the home. There was substantial conflict before the trial court about almost everything in the lawsuit.
The court awarded damages of $11,600 based on the testimony of an assistant county property appraiser that the house had sustained a 20% diminution in value. The appellant contends that this was erroneous under Grossman Holdings Limited v. Hourihan, 414 So. 2d 1037 (Fla.1982), and Temple Beth Sholom v. Thyne Construction Corp., 399 So. 2d 525 (Fla. 2d DCA 1981). Appellant contends the only appropriate measure of damages in this ease was the cost of repair and that this amount was clearly shown to be in the neighborhood of $1500. We agree that the court here used an improper measure of damages in resorting to the diminution in value rather than employing the cost of repair. This is not a situation where the repair cost would have constituted economic waste. As such, we conclude that the court employed the wrong measure of damages and remand the matter to the trial court for a further trial solely on the issue of damages. We do not agree with appellant’s argument as to the amount of damages proven. On remand, the court may receive further evidence in its discretion.
The awards of attorneys’ fees and costs are also reversed to be reassessed on remand.
AFFIRMED AS TO LIABILITY AND REVERSED FOR A FURTHER TRIAL ON DAMAGES.
BERANEK, DELL and WALDEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By
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Latite Roofing Co., Inc. v. August Urbanek and Sidney Kohl, 528 So. 2d 1381 (Fla. 4th DCA 1988)…repair the roof due to Latite’s negligent workmanship. That is the proper measure of damages in this factual scenario. Pearce & Pearce, Inc. v. Kroh Brothers Development Co., 474 So. 2d 369 (Fla. 1st DCA 1985); Tree Construction Corp. v. Caplinger, 446 So. 2d 245 (Fla. 4th DCA 1984). Next, Latite contends that, under the doctrine of Slavin v. Kay, 108 So. 2d 462 (Fla.1958), since Urbanek purchaséd the property in a state of partial completion, he assumed responsibility for all defects since they were open a…
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Tillman v. Howell, 634 So. 2d 268 (Fla. 4th DCA 1994)…unreasonable economic waste. While Grossman involved a suit by an owner against a contractor for unfinished construction, the rationale has been applied to causes of action involving construction defects as well. See Tree Const. Corp. v. Caplinger, 446 So. 2d 245 (Fla. 4th DCA 1984); see also Andalora v. Lindenberger, 576 So. 2d 354 (Fla. 4th DCA 1991). As early as 1854, as explained in Hadley v. Baxendale, 9 Ex. 341, 156 Eng.Rep. 145 (1854), the damages recoverable for breach of contract have been limited…
Authorities Cited
- Grossman Holdings Ltd. v. Hourihan, 414 So. 2d 1037 (Fla. 1982)
- Temple Beth Sholom & Jewish Ctr., Inc. v. Thyne Constr. Corp., 399 So. 2d 525 (Fla. 2d DCA 1981)