Charley Toppino & Sons v. SEAWATCH

658 So. 2d 922
CourtSupreme Court of Florida
DecidedNovember 10, 1994
Docket80872, 80873
StatusPublished
Cited by6 cases

This text of 658 So. 2d 922 (Charley Toppino & Sons v. SEAWATCH) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Charley Toppino & Sons v. SEAWATCH, 658 So. 2d 922 (Fla. 1994).

Opinion

658 So.2d 922 (1994)

CHARLEY TOPPINO & SONS, Inc., etc., Petitioner,
v.
SEAWATCH AT MARATHON CONDOMINIUM ASSOCIATION, INC., etc., Respondent.
EPIC METALS CORP., et al., Petitioners,
v.
SEAWATCH AT MARATHON CONDOMINIUM ASSOCIATION, INC., etc., Respondent.

No. 80872, 80873.

Supreme Court of Florida.

November 10, 1994.
Rehearing Denied February 14, 1995.

Arthur J. England, Jr. and Charles M. Auslander of Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A., Miami, and Lynn E. Wagner and Richard A. Solomon of Cabaniss, Burke & Wagner, P.A., Orlando, on behalf of Charley Toppino and Sons, Inc.

Richard A. Sherman and Rosemary B. Wilder of the Law Offices of Richard A. Sherman, P.A., Fort Lauderdale, on behalf of Turtle Kraals, Ltd.

Gail Leverett, Betsy E. Gallagher and David B. Pakula of Kubicki, Draper, Gallagher & McGrane, P.A., Miami, on behalf of Epic Metals Corp., for petitioners.

H. Hugh McConnell and Steven M. Siegfried of Siegfried, Kipnis, Rivera, Lerner & De La Torre, P.A., Coral Gables, for respondent.

Karl M. Scheuerman, Chief Atty., Dept. of Business and Professional Regulation, Tallahassee, amicus curiae for Div. of Florida Land Sales, Condominiums, and Mobile Homes.

*923 SHAW, Justice.

We have for review a decision presenting the following certified question of great public importance:

Does section 718.124, Florida Statutes [(1987)], grant a condominium association an extended period of time in which it may assert a cause of action for damage to common elements in condominium buildings, beyond the time granted in section 718.203, Florida Statutes [(1987)], after unit owners have elected a majority of the members of the board of administration?

Seawatch at Marathon Condominium Ass'n, Inc. v. Charley Toppino & Sons, Inc., 610 So.2d 470 (Fla. 3rd DCA 1992). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We answer in the affirmative and approve Seawatch.

I. FACTS

Seawatch Condominium consists of three five-story buildings that were constructed between 1981 and 1983. Certificates of occupancy were issued on February 19, 1982, April 12, 1982, and April 8, 1983. Control of the condominium association (the Association) passed from the developer to the unit owners on August 10, 1985, and the Association filed the present suit on May 13, 1988, "in its own right and as the lawful representative of the class of owners of the parcels or units comprising the Condominium." The complaint[1] alleged that damages were caused throughout the condominium by the use of defective concrete and metal decking during construction. These defects allegedly resulted in the cracking of concrete surfaces, cracking of ceramic tiles attached to the surfaces, and the seepage of rust-stained water onto automobiles parked below. The complaint noted that the claim "concern[s] matters of common interest to the Association's Unit owner members, which matters include the Condominium's common elements."

The following were named as defendants: Turtle Kraals, Ltd., the developer; Monroe Construction Corporation, the general contractor; Charley Toppino & Sons, Inc., the manufacturer and supplier of the concrete; and Epic Metals Corporation, the manufacturer of the metal decking system. The suit was based on the "breach of implied warranties deemed to have been granted to the plaintiff Unit Owners pursuant to ... section 718.203, Florida Statutes [1987]."

The trial court dismissed the complaint with prejudice without giving a rationale. The district court reversed, reasoning thusly: Section 718.203(2)(a), Florida Statutes (1987), provides a cause of action for breach of implied warranty; section 95.11(3)(c) provides a four-year limitations period for bringing implied warranty actions; and section 718.124 tolls the running of the limitations period until control of the condominium association passes from the developer to the unit owners. The court found the suit timely, but certified the above question.

II. THE LAW

The law governing the right of condominium unit owners and associations to sue is set out in chapter 718, Florida Statutes (1987), and the time limits for filing suit are contained in chapter 95, Florida Statutes (1987).

A. Rights of the Association

Section 718.203, Florida Statutes (1987), creates a statutory cause of action for breach of implied warranty of fitness in condominium construction:

718.203 Warranties. —
(1) The developer shall be deemed to have granted to the purchaser of each unit an implied warranty of fitness and merchantability for the purposes or uses intended as follows:
(a) As to each unit, a warranty for 3 years commencing with the completion of the building containing the unit.
... .
(e) As to the roof and structural components of a building or other improvements and as to mechanical, electrical, and plumbing elements serving improvements or a building, except mechanical elements *924 serving only one unit, a warranty for a period beginning with the completion of construction of each building or improvement and continuing for 3 years thereafter or 1 year after owners other than the developer obtain control of the association, whichever occurs last, but in no event more than 5 years.
....
(2) The contractor and all subcontractors and suppliers grant to the developer and to the purchaser of each unit implied warranties of fitness as to the work performed or materials supplied by them as follows:
(a) For a period of 3 years from the date of completion of construction of a building or improvement, a warranty as to the roof and structural components of the building or improvement and mechanical and plumbing elements serving a building or an improvement, except mechanical elements serving only one unit.

As noted in the statute, the right to exercise this implied warranty belongs to the unit purchaser, i.e., the unit owner.

A separate statutory section within the same chapter specifically grants to condominium associations the power to file lawsuits on behalf of the unit owners in matters of common interest:

718.111 The association. —
....
(3) POWER TO MANAGE CONDOMINIUM PROPERTY AND TO CONTRACT, SUE, AND BE SUED. — The association may contract, sue, or be sued with respect to the exercise or nonexercise of its powers... . After control of the association is obtained by unit owners other than the developer, the association may institute, maintain, settle, or appeal actions or hearings in its name on behalf of all unit owners concerning matters of common interest, including, but not limited to, the common elements; the roof and structural components of a building or other improvements; mechanical, electrical, and plumbing elements serving an improvement or a building; representations of the developer pertaining to any existing or proposed commonly used facilities... . If the association has the authority to maintain a class action, the association may be joined in an action as representative of that class with reference to litigation and disputes involving the matters for which the association could bring a class action.

§ 718.111(3), Fla. Stat. (1987) (emphasis added). See also Fla.R.Civ.P. 1.221.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Beaumont Condominium Assoc. v. Brown, J.
Superior Court of Pennsylvania, 2017
Silver Shells Corp. v. St. Maarten at Silver Shells Condominium Ass'n
169 So. 3d 197 (District Court of Appeal of Florida, 2015)
SALTPONDS CONDO. v. Walbridge Aldinger Co.
979 So. 2d 1240 (District Court of Appeal of Florida, 2008)
SALTPONDS CONDOMINIUM ASS'N, INC. v. McCoy
972 So. 2d 230 (District Court of Appeal of Florida, 2007)
Berish v. Bornstein
21 Mass. L. Rptr. 530 (Massachusetts Superior Court, 2006)
Sabal Chase Homeowners v. Disney World
726 So. 2d 796 (District Court of Appeal of Florida, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
658 So. 2d 922, Counsel Stack Legal Research, https://law.counselstack.com/opinion/charley-toppino-sons-v-seawatch-fla-1994.