JEROME FELDMAN AND NETWORKS USA XXX LLC, APPELLANTS/CROSS-APPELLEES,
v.
VILLA REGINA ASSOCIATION, INC., A FLORIDA CORPORATION, APPELLEE/CROSS-APPELLANT

Fla. 3d DCA | 2012-05-02
No. 3D10-1328
Before WELLS, C.J., and EMAS, J„ and SCHWARTZ, Senior Judge.
89 So. 3d 970 Florida District Court of Appeal, Third District (2012)

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Holding

The court held that where a plaintiff claims only permanent injury and diminution in value, and the jury finds the injury temporary, judgment should be entered for the defendant, as there is no basis for restoration damages.


Headnotes

[1] Where the injury to real property is temporary, the measure of damages is the cost of repairs or restoration; where the injury is permanent, the measure of damages is the…

[2] A plaintiff must recover, if at all, on the theory of damages presented to the court and jury throughout the proceedings.

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Facts & Procedural History

Plaintiff sued for water intrusion damage to his condominium, seeking only diminution in value for permanent injury. The jury found the damage tempora…

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Opinion of the Court
WELLS, Chief Judge.

WELLS, Chief Judge.

Jerome Feldman and Networks USA XXX LLC1 appeal from an order granting defendant, Villa Regina Association, Inc.’s, motion for new trial. Villa Regina cross-appeals from an order denying its motion for judgment in accordance with its motion for directed verdict. We reverse both orders and remand with instructions to enter judgment in Villa Regina’s favor.

This action involves a number of claims all arising from alleged water intrusion, and damage therefrom, into a condominium unit owned by Feldman. From the start, and consistently throughout, Feld-man chose to proceed solely on the theory that the injury to his unit was permanent and sought to recover only the “substantial diminution in the value of the [condominium] and loss of use (fair rental value)” caused by the water intrusion.2 See Bisque Assocs. of Fla., Inc. v. Towers of Quayside No. 2 Condo. Ass’n, 639 So.2d 997, 999 (Fla. 3d DCA 1994) (wherein this court explained that “[ujnder general principles of tort law, where the injury to real property is merely temporary, or where the property can be restored to its original *972condition at reasonable expense, the measure of damages should include the cost of repairs or restoration. Where the cost of repair exceeds the value of the property in its original condition, or where restoration is impracticable, [referred to in other cases as a permanent injury] the measure of damages is diminution of value”) (citations omitted).

At trial, and consistent with his representations throughout, Feldman made no effort to prove the cost of restoring the unit but sought to establish only how much the value of the unit had been diminished by virtue of the alleged water intrusion. In doing so, he introduced the testimony of licensed appraiser Lee War-onker who utilized an estimate provided by a general contractor for repairs to the unit in determining the diminution in value of the unit.3 At the close of the testimony, the jury was asked whether the damage suffered, if any, was permanent as opposed to temporary. See Bisque, 639 So.2d at 999 (reversing and remanding for new trial on damages “so that a jury may decide the nature of the injury and, accordingly, the measure and amount of damages due”). The jury returned a verdict finding that the damage suffered by Feldman was temporary, with no diminished value attributable to a permanent injury. On that determination, judgment should have been entered in Villa Regina’s favor.

However because the verdict form additionally asked the dollar amount of damages due for a temporary injury, which the jury pegged at $1,453,000, and because there was no evidentiary support for this award, the court below granted a motion for a new trial on damages.4 Because Feldman sought only diminution value for a permanent loss, a claim rejected by the jury, no basis exists for determining restoration damages — damages that Feld-man repeatedly renounced. Judgment *973should have been entered for Villa Regina. See Resorts Int'l, Inc. v. Charter Air Ctr., Inc., 508 So.2d 1298, 1295 (Fla. 3d DCA 1987) (“ ‘It is well settled that, regardless of what the evidence may otherwise show, plaintiff must recover, if at all, on the case made by her declaration.’ Atl. Co. v. Orendorff, 156 Fla. 1, 22 So.2d 260, 263 (1945) (en banc); see also Mansell v. Foss, 343 So.2d 910 (Fla. 3d DCA 1977).”); accord Wellcraft Marine Corp. v. Outdoor World, Inc., 533 So.2d 775, 776 (Fla. 3d DCA 1988).

The orders on appeal are, therefore, reversed with this cause remanded for entry of judgment in Villa Regina’s favor.5


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