B & J HOLDING CORPORATION, A FLORIDA CORPORATION, ET AL., APPELLANTS,
v.
BERTHA WEISS ET AL., APPELLEES

Fla. 3d DCA | 1977-11-22
No. 76-1574
Before PEARSON, HAVERFIELD and NATHAN, JJ.
353 So. 2d 141 Florida District Court of Appeal, Third District (1977) Caution
Cited by 42 cases

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Synopsis

B & J Holding Corporation and its officers appealed a jury verdict awarding damages for breach of contract, implied warranty of fitness, and breach of fiduciary duty in a condominium construction defect case. The Third District Court of Appeal affirmed the judgment, holding that condominium association officers can be held personally liable for breaching their fiduciary duties to the association.


Holding

The court affirmed the judgment on all counts. It held that unit owners could recover for breach of contract and implied warranty; damages should be measured by the cost of correcting the defects even if repairs were not yet completed; officers and directors of the condominium association could be held personally liable for breaching their fiduciary duties to the association by failing to collect maintenance payments; and the statute of limitations for condominiums did not apply because the action was based on common law causes of action rather than statutory condominium law.


Headnotes

[1] The measure of damages for breach of implied warranty and contract in construction cases is the cost of correcting the defects or completing the omissions.

[2] Corporate officers and directors may be held personally liable for damages to the corporation resulting from a breach of their fiduciary duty, even if the breach arises f…

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Key Quotes

“where an officer and director of a corporation occupies a quasi-fiduciary relationship toward the corporation and its stockholders and is bound to act with fidelity and the utmost faith, he (or she) in accepting the office impliedly agrees and undertakes to give the corporation the benefit of his (or her) best care and judgment and to exercise his (or her) powers in the interest of the corporation and the stockholders; officers and directors are liable for damages to the corporation which results from a breach of their trust on the common law rule of the responsibility of an agent for injury to his principal.”

Establishes the fiduciary duty standard for corporate officers and directors and their personal liability for breaching such duties

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Facts & Procedural History

B & J Holding Corporation developed the Stuart House Condominium and allegedly substituted inferior features for those promised in the purchase contra…

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Opinion of the Court
HAVERFIELD, Judge.

HAVERFIELD, Judge.

This is an appeal by defendant corporate developer and its three principal officers from a final judgment totalling $51,489.88 entered pursuant to a jury verdict in favor of the plaintiffs, a condominium association and the unit owners, in this action for breach of implied warranty and contract.

Several unit owners in the Stuart House Condominium on behalf of themselves, the remaining unit owners and the condominium association filed a breach of contract and implied warranty action against the developer, B & J Holding Corporation, and its three principal officers, Louis Sternberg, Ben Okun and Louis Halpern, who were the initial officers and directors of the condominium association. Plaintiffs’ complaint, in essence, alleged that B & J breached its purchase contract and implied warranties of fitness by substituting inferior features for those set forth in the documents incorporated into the purchase contract thereby changing the building plans filed with the local governmental authority, and constructing the common elements and systems of the building in an improper and inferior manner. The alleged deficiencies consisted of the following: (1) omission of sound boards in party walls, (2) omission of moisture proofing in the card room wall, (3) utilization of an incorrect voltage system, (4) utilization of 3 HP rather than 5 HP water pumps, (5) failure to provide housing for the hot water heaters on the roof, and (6) use of clear plate glass rather than tinted glass. The complaint further alleged that Sternberg, Okun and Halpern, as the initial officers and directors of the condominium association, breached their fiduciary duty to the association in failing to assess B & J as the owner of the unsold units for the maintenance payments due the association. Plaintiffs prayers for punitive damages and attorney fees were ultimately stricken by the court. At the ensuing trial, the jury returned a verdict against B & J for $48,884 on the breach of contract and implied warranty counts, and a $2,605.88 verdict against B & J, Sternberg, Okun and Louis Halpern holding them jointly and severally liable for the breach of their fiduciary duty to the association. Judgment was entered accordingly.

After considering the arguments raised in defendants’ first two points on appeal that plaintiffs, as a matter of law, could not prevail upon the counts of breach of contract and implied warranty, we conclude that these points have been adversely determined to defendants in David v. B & J Holding Corp., 349 So. 2d 676 (Fla.3d DCA revised opinion filed August 9, 1977).

Defendants also argue that plaintiffs were not entitled to recover the cost of remedying or repairing the deficiencies because they produced no evidence as to the sums incurred to correct or repair the deficiencies.

The record contains ample testimony as to the expenses which will have to be incurred to correct the defects and in a case of this nature the measure of damages is the cost of correcting the defects or completing the omissions. Edgar v. Hosea, 210 So. 2d 233 (Fla.3d DCA 1968).

Next, defendants Sternberg, Okun and Halpern contend the court erred in instructing the jury that it could find them personally liable, as initial officers and directors of the condominium association, for B & J’s failure to make the maintenance payments for the unsold units to the association.1

In support of their contention, defendants cite to 7 FlaJur. Contracts § 305 (1956):

“§ 305. Liability for Corporate Acts, Debts, and Contracts.

“The directors or officers of a corporation are not liable for corporate acts and debts simply by reason of their official relation to the corporation; they are merely the agents of the corporation and on principle should no more be held liable therefore than any other agent should be held for the acts and debts of his principal .. . ”

Although we do not take issue with the above principle of law, we nevertheless find it inapplicable here as the defendants are not being held liable in their capacity as principal officers of B & J, but rather as the condominium association’s initial directors and officers who deliberately failed to collect the maintenance payments due the association from B & J as owner of the unsold units. We hold that where an officer and director of a corporation occupies a quasi-fiduciary relationship toward the corporation and its stockholders and is bound to act with fidelity and the utmost faith, he (or she) in accepting the office impliedly agrees and undertakes to give the corporation the benefit of his (or her) best care and judgment and to exercise his (or her) powers in the interest of the corporation and the stockholders; officers and directors are liable for damages to the corporation which results from a breach of their trust on the common law rule of the responsibility of an agent for injury to his principal. See Flight Equipment & Engineering Corp. v. Shelton, 103 So. 2d 615 (Fla.1958) and 7 Fla. Jur. Corporations §§ 299-300 (1956) and cased cited therein. Thus, we conclude the personal liability instruction was correct and the evidence was sufficient to support the verdict holding defendants personally liable.

Last, defendants argue plaintiffs are barred by the one-year statute of limitation set forth in Section 711.24(l)(g)(3), Florida Statutes (1973).

This argument lacks merit because plaintiffs did not bring this action under Chapter 711, Florida Statutes (1973). The relief granted was premised upon common law causes of action.

On cross-appeal plaintiffs contend the court erred by striking their claim for punitive damages before the trial. We cannot agree.

The law with respect to punitive damages is that such damages are not recoverable for breach of contract; however, where the acts constituting a breach of contract also amount to a cause of action in tort, there may be recovery of exemplary damages upon the proper allegations and proof of the intentional wrong, insult, abuse or gross negligence constituting an independent tort. Griffith v. Shamrock Village, 94 So. 2d 854 (Fla.1957); Country Club of Mi ami Corporation v. McDaniel, 310 So. 2d 436 (Fla.3d DCA 1975). We find plaintiffs failed to allege a willful, independent tort, separate and apart from the breach of contract, upon which punitive damages might be claimed.

We also considered plaintiffs’ remaining second point on cross-appeal and conclude that no reversible error has been made to appear. Affirmed.

. a non-profit corporation


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Citator

Cited By (20 total)

  • Grossman Holdings Ltd. v. Hourihan, 414 So. 2d 1037 (Fla. 1982)
    …tr. Corp., [*1040] 399 So. 2d 525 (Fla.2d DCA 1981); Deltona Corp. v. Jannotti, 392 So. 2d 976 (Fla. 1st DCA 1981); Gory Associated Indus., Inc. v. Jupiter Roofing & Sheet Metal, Inc., 358 So. 2d 93 (Fla. 4th DCA 1978); B & J Holding Corp. v. Weiss, 353 So. 2d 141 (Fla.3d DCA 1977). . Restatement (First) of Contracts § 346 illustration 2 (1932).…
  • Vantage View, Inc. v. Bali E. Dev. Corp., 421 So. 2d 728 (Fla. 4th DCA 1982)
    …els thereof to the unit owners with the defects and deficiencies set forth in Exhibit “A”. These allegations state a cause of action. See Gable v. Silver, 258 So. 2d 11 (Fla. 4th DCA), aff’d, 264 So. 2d 418 (Fla.1972); B & J Holding Corp. v. Weiss, 353 So. 2d 141 (Fla. 3d DCA 1977); David v. B & J Holding Corp., 349 So. 2d 676 (Fla. 3d DCA 1977). Concerning its count for negligence, appellant’s second amended complaint alleged the following: 6.2 At all times material hereto, the Developers (BALI EAST, BANK…
  • Drexel Props., Inc. v. BAY Colony Club Condo., Inc., 406 So. 2d 515 (Fla. 4th DCA 1981)
    …n theory of breach of implied warranty for a noisy air conditioner since the test was “whether the premises met ordinary, normal standards reasonably to be expected of living quarters of comparable kind and qualities.” B & J Holding Corp. v. Weiss, 353 So. 2d 141 (Fla. 3d DCA 1977), was a suit by a condominium association and unit owners against the developer for breach of contract and implied warranty. The defects alleged were no sound boards in party walls, no moisture proofing in card room wall, incorrect…

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