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Southwin v. Verde

District Court of Appeal of Florida, Third District
Jul 18, 2001
Case Nos. 3D00-612, 3D99-2233 (Fla. Dist. Ct. App. Jul. 18, 2001)

Opinion

Case Nos. 3D00-612, 3D99-2233.

Opinion filed July 18, 2001.

Appeals from the Circuit Court for Miami-Dade County, Herbert Stettin, Judge. Lower Tribunal No. 96-8244.

Zuckerman, Spaeder, Taylor Evans, and Thomas J. Meeks and Beatriz C. Galbe; and Randy D. Ellison, for appellants.

Ervin A. Gonzalez and Raymond W. Valori, for appellees.

Before GERSTEN, and RAMIREZ, JJ., and NESBITT, Senior Judge.


Appellants, Southwin, Inc. and Tripp Construction, Inc., appeal an adverse final judgment and the denial of their motions for new trial in a class action suit brought by sixty-seven homeowners against the developer, Southwin, and the builder, Tripp, for numerous building code violations.

The jury returned a verdict in favor of the homeowners for $5,237,893.00, including the cost to demolish and rebuild each of the houses, as well as displacement costs for each of the homeowners. Because there is sufficient evidence to support the jury's aggregate damage award and no abuse of discretion by the trial court, we affirm.

The class representatives are the owners of three of the defective houses. Southwin and Tripp moved for a new trial, arguing that the aggregate damage award was not supported because it was based only on the degree of damage to three houses, as opposed to that of the remaining sixty-four houses. The trial court denied the motions, holding that no individualized proof of damages was required because the class had already been certified and the order certifying the class supported the calculation of the aggregate damage award.

The order granting class certification was appealed to this court and affirmed. See Southwin, Inc. v. Verde, 709 So.2d 578 (Fla. 3d DCA 1998).

The standard of review for the denial of a motion for new trial is whether or not the trial judge abused its discretion. See Salnave v. Public Health Trust of Dade County, 624 So.2d 282 (Fla. 3d DCA 1993);Jones v. Airport Rent-A-Car, Inc., 342 So.2d 104 (Fla. 3d DCA 1977). If reasonable people could differ concerning the propriety of the judge's decision, no abuse of discretion is demonstrated. See Baptist Mem'l Hosp. Inc. v. Bell, 384 So.2d 145, 146 (Fla. 1980). Determinations regarding the weight of the evidence or the credibility of witnesses are peculiarly within the province of the finder of fact and will not be disturbed on appeal. See Dreyfuss v. Dreyfuss, 701 So.2d 437, 440 (Fla. 3d DCA 1997); M.A.B. v. Department of Health Rehabilitative Servs., 630 So.2d 1252, 1254 (Fla. 1st DCA 1994). After a complete review of the record before us, we conclude that the jury verdict is supported by the evidence and that the appellants have failed to demonstrate an abuse of discretion in the trial court's denial of the motions for new trial.

In this case, the jury heard the testimony of three competent expert witnesses, including Lawrence Marks, Roy Van Wyk, and James Rodgers. These witnesses examined all of the homes and testified that the houses had similar defects and needed to be rebuilt. Although none of the experts examined the interior damage to the houses of the remaining sixty-four homeowners, Marks testified that he thoroughly inspected the remaining sixty-four houses from the outside, a couple from the inside, and that, except for their configuration, their construction is the same. Marks also testified that the construction defects in the houses could only be cured by demolishing and rebuilding the houses. Rogers testified that all of the houses had the same construction problems and that the only sensible option was to rebuild the houses. Van Wyk agreed that if the homeowners continued to have the problems of the sort revealed in the investigation of Marks and Rodgers, the only logical course is to rebuild the houses. Appellant's expert, John Pistorino, also examined three houses and concluded that there was some consistency in the repairs required by each of the houses. All of the houses were developed by Southwin and constructed by Tripp. In addition to the testimony regarding the defects to the houses, evidence was presented regarding the cost of repairs, as well as displacement costs, consistent with the damages awarded by the jury in this case.

Thus, it cannot be said that the jury could not have reached the aggregate damage award based on the evidence before it. We therefore find that the jury's verdict is well supported by the evidence, and that there is no abuse of discretion in the trial court's denial of the motions for new trial.

Affirmed.


Nesbitt, Senior Judge, (dissenting):Reviewing the record and considering the arguments made by the parties below, I conclude that the case should be reversed. The transcript demonstrates that the trial judge was under the mis-impression that he was obligated to decide the damages of sixty seven homeowners based on the evidence of damages as to three, and he proceeded to do so.

In Southwin I, we affirmed the trial court's order granting class certification. However nowhere in the order that we affirmed did the trial court rule on which issues would be subject to class treatment. Likewise, we never made such a determination. Nonetheless, it appears that on remand, the trial court made critical evidentiary rulings under the mistaken belief that the law of the case required that he not consider damages as to individual houses. Questions of liability for violations of code, breach of contracts, and possibly other issues were properly to be decided on a class basis. The trial court went much further, however, and did not permit the defendants to inspect each home and argue and support a claim of varying degrees of damages. This, to my way of thinking, mandates reversal.

The original trial court acknowledged in granting class certification that differing damages did not preclude class treatment and cited to Cohen v. Camino Sheridan, Inc., 466 So.2d 1212, 1213-1214 (Fla. 4th DCA 1985) (concluding entitlement to different amounts of damages not necessarily fatal to a class action).

The class action designation alone did not entitle the sixty seven homeowners to all new houses simply because proof that the homes of the named plaintiffs required total replacement, at least not solely based on class membership. See Broin v. Philip Morris Companies, Inc., 641 So.2d 888 (Fla. 3d DCA 1994) (holding entitlement to different amounts of damages is not fatal to a class action, and finding that should it become appropriate, the court may divide the class into subclasses to resolve these issues). Had the homeowners argued that when homes uniformly had certain defects the only thing to do was replace them, and had the defendant been given a fair opportunity to refute that assertion, the homeowners may have been able to make a valid case for the course the trial court followed.In fact, the trial judge expressed what he felt was unfair about what happened here-the parties contracted for homes that would last approximately forty years but got homes that were riddled with problems and life expectancies of only fifteen years. Instead of arguing this point and giving the defense a chance to refute this conclusion, however, the homeowners argued that the economic fate of sixty seven had to be decided on the evidence of three-merely because a class had been certified. The homeowners argued rigorously that once the class was certified, what ever was proven as to three had to be considered proven as to all, and the trial judge adopted this position.

In short, the defense should have been permitted to inspect all the houses. Defendants would have then sought mini trials on individual damages. The possibility that all the homes need to be replaced because of uniform construction discrepancies should not be ruled out. However such a ruling must be made after consideration of the law and the facts and after the defendant has had a chance to support its position.


Summaries of

Southwin v. Verde

District Court of Appeal of Florida, Third District
Jul 18, 2001
Case Nos. 3D00-612, 3D99-2233 (Fla. Dist. Ct. App. Jul. 18, 2001)
Case details for

Southwin v. Verde

Case Details

Full title:SOUTHWIN, INC., et al., Appellants, v. CHARLES VERDE, et al., Appellees

Court:District Court of Appeal of Florida, Third District

Date published: Jul 18, 2001

Citations

Case Nos. 3D00-612, 3D99-2233 (Fla. Dist. Ct. App. Jul. 18, 2001)

Citing Cases

Tripp Const., Inc. v. Verde

PER CURIAM. In light of our decision in Southwin, Inc. v. Verde, Nos. 3D00-612, 3D99-2233 (Fla. 3d DCA July…