D.R. Horton, Inc. - Jacksonville v. Heron's Landing Condominium Association of Jacksonville, Inc. ( 2018 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D17-1941
_____________________________
D.R. HORTON, INC. -
JACKSONVILLE,
Appellant,
v.
HERON’S LANDING
CONDOMINIUM ASSOCIATION OF
JACKSONVILLE, INC.,
Appellee.
_____________________________
On appeal from the Circuit Court for Duval County.
James Daniel, Judge.
December 27, 2018
LEWIS, J.
Appellant, D.R. Horton, Inc. – Jacksonville, appeals a final
judgment entered in favor of Appellee, Heron’s Landing
Condominium Association of Jacksonville, Inc., and raises six
issues, only two of which merit discussion. Appellant contends
that the trial court erroneously admitted extrapolation evidence
and erred in failing to grant its motion for a directed verdict
because Appellee sustained no actual damages as a result of
alleged building code violations, failed to present evidence that
Appellant knew or should have known of building code violations,
and failed to establish a breach of the implied warranty of
habitability. For the following reasons, we reject Appellant’s
arguments and affirm.
FACTUAL AND PROCEDURAL HISTORY
In June 2013, Appellee filed a Complaint against Appellant,
the developer and general contractor of Heron’s Landing, the
condominium project at issue. The project consisted of 240
residential units in twenty buildings. In its Amended Complaint,
Appellee alleged that Appellant violated the Florida Building
Code, breached warranties, and was negligent in its construction
of the project.
Thereafter, Appellant filed a motion in limine wherein it
sought to preclude the testimony of Appellee’s experts W. Ron
Woods and Bryan Busse related to defect allegations or repair
recommendations on the grounds that the testimony was
inherently unreliable and based on improper extrapolation.
Appellant filed a second motion in limine relating to testimony
presented by Woods and Busse wherein it requested that the trial
court preclude both witnesses from testifying as to “opinions,
observations, conclusions, damages, or otherwise related to alleged
defects related to windows and sliding glass doors, stucco, or
asphalt on the grounds that such opinions are without proper
foundation, based upon extrapolation, and on the grounds that the
testimony does not pass the threshold for admissibility required by
Florida Statute Section 90.702.”
During the hearing on the motions in limine, Mr. Woods
testified that he had been involved in engineering consulting for
almost forty years and had done “hundreds of building condition
assessments and building condition surveys over the years.”
Woods, who was a member of certain committees in ASTM, the
American Society for Testing and Materials, testified that ASTM
E2018 is the standard for a property condition assessment and is
used as a guideline “for the phase one of our forensic investigations
or of the initial part of our forensic investigation because this is a
nonintrusive, nondestructive approach to making observations on
a building.” All the ASTM standards were peer reviewed by
professional engineers, architects, and building design
professionals. According to Woods, who was the “principal author”
of a textbook used in fifty colleges and universities across the
2
United States and Canada, the standards published by ASTM
represented a consensus of the relevant scientific community.
After testifying in detail about the problems he found at Heron’s
Landing, Woods was asked whether it was just his opinion that
one should employ a qualitative sampling method, as opposed to a
quantitative sampling method, or whether there had been any
peer-reviewed publications to support his position. He replied,
“Well, E2128 is a peer-reviewed publication. There is a peer-
reviewed ASTM journal article that has to do with using these
protocols for qualitative assessment.” Woods testified that he had
Tom Miller, a professional engineer, peer review his report. 1
When later asked by the trial court what he was
recommending with respect to all of the windows at the project,
Woods replied, “In our remediation plan, all of the windows would
be removed and the contractor’s option, they can reuse those same
windows provided they remediate them back to the manufacturer’s
requirements and they can put them back.” The primary reason
1 Miller explained in detail the methods and techniques that
should be employed in the forensic investigation of wood frame
stucco clad buildings by competent professional engineers. He also
listed several techniques that are applied by the community of
professional engineers in Florida to evaluate buildings similar to
Heron’s Landing. Miller stated, “Based on my review of the
documents described above, [Appellee’s experts] used the above
methodologies in [their] forensic investigation of Heron’s Landing
in order to reach the opinions expressed in the reports . . . or stated
in the deposition testimony given by Mr. Woods and Mr. Busse.”
Miller opined that the techniques used by the experts were
techniques that are generally accepted in the community of Florida
and national professional engineers when investigating building
conditions at projects similar to Heron’s Landing and were
consistent with the intent of the peer-reviewed techniques
published by the ASTM. He further opined that the methodology
used was sufficiently reliable and had widespread acceptance
within the relevant scientific community.
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for removing the windows was to “flash properly around the
windows.” When asked by the trial court whether he was saying
that all 220,000 square feet of stucco needed to be replaced based
upon “200 something feet of testing,” Woods replied, “That is
accurate. . . .” When asked what criteria, other than testing, led
him to that conclusion, Woods replied, “A lot of visual observation,
a lot of indications of problematic conditions with the stucco that
we have seen many times on other projects that have led to a need
to remove those and the unpredictability of where water actually
comes in.” Mr. Busse similarly testified about the defects he found
at the project and his method of testing and observation.
After hearing the parties’ arguments, the trial court, in
analyzing the issue pursuant to section 90.702, Florida Statutes
(2013), and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993), found that the methodology used by Appellee’s
experts was scientifically reliable, had been peer-reviewed, had
been developed by people in the industry, and was generally
accepted in the scientific community. The trial court also
referenced a Haughton and Murphy article stating that the
“protocol” used by the experts had been “peer reviewed extensively
and developed by people in . . . this area . . . .” In its written order,
the trial court again found that both experts’ testimony and
opinions were based upon a recognized, peer-reviewed, and
generally accepted methodology. The trial court also found that
the “literature” rejected Appellant’s argument that quantitative or
statistically valid sampling was necessary to appropriately
analyze the cause of moisture intrusion into a building envelope,
what might prevent it, and the potential for moisture-related
damage.
During trial, Appellee called several condominium unit
owners, who testified about various issues they had experienced
with their units, including, but not limited to, wet carpets and
drywall, mold, wall cracking, roof leaks, and increasing noise
coming through the walls from nearby units. Mr. Woods provided
testimony similar to that provided during the hearing on
Appellant’s motions in limine, as well as additional testimony
concerning the issues he found at the project. He also testified that
the “defects in the buildings were the result of construction
activities, and those construction activities happened when the
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construction happened.” Woods found the biggest issue to be the
“stucco walls.” He explained in detail how the stucco at issue did
not meet the pertinent standards and the Florida Building Code.
Woods opined that the issues he found would have been observable
during construction. He testified that Appellant had one
superintendent “on the job” throughout the course of construction.
When asked why that was relevant, he replied, “Because he would
have had the opportunity to correct these defects as they were
observed, and he is the one who controls the job site and controls
the activities of construction on the job site.” Woods affirmatively
responded when asked if he found things at the project indicating
that changes were made during construction that were not in
compliance with the plans drawn by the architect. He testified
that homeowners could not deal with “voids” relating to the stucco.
When asked what was required to fix the stucco, Woods replied,
“Again, removal of the stucco and appropriate placement of the
sealant profile in those areas.” When asked if there was a way to
stop stucco corrosion, Woods replied, “It gets faster with more
moisture. . . . But there is no way to stop it once it has started
without replacing it.” After Mr. Busse testified about the issues he
found at the project, Richard Haines, the CEO of RLH
Construction, Inc., testified that his “all in” bid to correct the issues
at the project was $9,157,690.
Arthur Newcomb, Appellant’s construction supervisor for the
project, testified that he was given 210 days to complete each
building. He affirmatively responded when asked if he “beat that
time.” When asked if his average for each building was 135 days,
he replied, “Well, some were in the lower, some were less, yes.”
After Appellee rested its case, Appellant’s counsel moved for
a directed verdict in part on the grounds at issue in this appeal.
The trial court denied the motion.
During Appellant’s case, Mr. Newcomb again testified. When
asked on cross-examination whether he paid attention to how
various aspects of the construction were being done, he replied,
“Not every minute, but when I was – if I was walking behind a
building, I would try to observe everything I could.” When asked
whether he could really put his eyes on every building, he replied,
“It would be impossible to be everywhere at one time.” He testified
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that the way in which a photograph showed styrofoam being used
on the “lath” of a wall was “not the way it’s supposed to be done.”
When asked about photographs showing some unit roofs,
Newcomb testified, “It should not be holding water there.” When
shown photographs of the stucco at issue, Newcomb testified, “I
agree, it doesn’t look well, but it doesn’t necessarily mean the
water is going to get to the actual structure of the building.” When
asked if he would have had voids in the stucco redone, Newcomb
replied, “Yes.” He testified, “If I would have seen that, I would
have definitely made that correction there.” When asked if he ever
complained to Appellant that he was being handicapped, Newcomb
replied, “I requested more information about certain things, yes.”
When asked if that was not well-received, he replied, “Depending
on the circumstance.” He later testified, “Not everything that I
needed, that I felt like I needed, to do the job. They gave me what
they felt like I needed to get the job done.”
The jury found that Appellant was negligent and that its
negligence was the legal cause of Appellee’s loss or damage. As for
the building code violation claim, the jury found that Appellee was
damaged by “any violation” of the code and that Appellant knew or
should have known that the violations existed. With regard to the
breach of statutory warranty claim, the jury found that Appellant
breached the implied warranty of fitness and merchantability,
which was the legal cause of loss or damage to Appellee. The jury
found that the total amount of damages sustained by Appellee was
$9,600,000. The jury checked “yes” when asked if “any portion of
the total amount awarded [was] due to installation of the stucco.”
Appellant subsequently filed a motion for new trial or, in the
alternative, motion for remittitur. In denying the motion in part,
the trial court found that Appellee presented evidence of excessive
stucco cracking. The trial court granted Appellant’s motion to set
aside the verdict as to the negligence claim based on the economic
loss rule. It subsequently entered a final judgment in Appellee’s
favor. This appeal followed.
ANALYSIS
Appellant first contends that it is entitled to have the verdict
set aside or have the case remanded for a new trial because the
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trial court erroneously admitted extrapolation evidence from Mr.
Woods and Mr. Busse. The trial court assessed this evidentiary
issue below pursuant to section 90.702, Florida Statutes. In
amending the statute in 2013, the Legislature sought to adopt the
evidentiary standard set forth in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), and cease the
application of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
While this appeal was pending, the Florida Supreme Court issued
DeLisle v. Crane Co., No. SC16-2182, 2018 WL 5075302, at *1 (Fla.
Oct. 15, 2018). There, the supreme court recognized that while
both Frye and Daubert purport to provide a trial judge with the
tools necessary to ensure that only reliable evidence is presented
to the jury, Frye relies on the scientific community to determine
reliability whereas Daubert relies on the scientific savvy of trial
judges to determine the significance of the methodology used. Id.
at *8. In finding the Legislature’s adoption of the Daubert test
unconstitutional, the supreme court reaffirmed that Frye is the
appropriate test in Florida courts. Id. It noted its prior recognition
that Frye is inapplicable to the vast majority of cases because it
applies only when experts render an opinion that is based upon
new or novel scientific principles. Id. Notwithstanding that the
trial court and the Fourth District analyzed the admission of
expert testimony in the case under section 90.702 and Daubert, the
supreme court held that because medical causation testimony was
not new or novel and was not subject to a Frye analysis, the
testimony at issue was properly admitted by the trial court and
should not have been excluded by the Fourth District. Id.
Given the supreme court’s DeLisle opinion, we directed each
party to file a response addressing how the opinion affected our
consideration of Appellant’s first issue on appeal. Appellee claims
that Appellant’s arguments as to this issue are now moot “because
under a ‘Frye analysis’ no judicial review of [its] expert testimony
was even necessary, since the uncontroverted evidence was that
the opinion testimony by [its] expert engineers was based on
established peer-reviewed scientific standards and was not ‘new or
novel.’” Appellee also contends that there is “no reason or need for
any remand or reconsideration of the sufficiency of the expert
testimony under a Frye analysis.” In contrast, Appellant argues
that applying the Frye standard to Appellee’s expert opinions
7
requires reversal because the experts offered opinions that were
based on new and novel scientific principles or discovery.
The supreme court has described the Frye test as one in which
the results of mechanical or scientific testing are not admissible
unless the testing has developed or improved to the point where
experts in the field widely share the view that the results are
scientifically reliable as accurate. Bundy v. State, 471 So. 2d 9, 13
(Fla. 1985). Stated differently, under Frye, the proponent of the
evidence has the burden of establishing by a preponderance of the
evidence the general acceptance of the underlying scientific
principles and methodology. Marsh v. Valyou, 977 So. 2d 543, 547
(Fla. 2007). However, as stated, the Frye standard only applies
when an expert attempts to render an opinion that is based upon
new or novel scientific techniques. Id.We accept Appellee’s argument that no Frye analysis is
necessary in this case. In reaching our decision, we find it
important that the trial court, albeit in the context of its Daubert
analysis, found that Appellee’s experts used a scientifically
reliable and peer-reviewed methodology that was the industry
standard. That finding was supported not only by Appellee’s
expert testimony but also by the affidavit of Tom Miller, a
professional engineer who was asked to review the methodology
employed by the experts. Miller explained in detail the methods
and techniques that should be employed in the forensic
investigation of wood frame stucco clad buildings by competent
professional engineers. He also listed the techniques that are
applied by the community of professional engineers in Florida in
evaluating buildings similar to Heron’s Landing. Miller stated,
“Based on my review of the documents described above, [Appellee’s
experts] used the above methodologies in [their] forensic
investigation of Heron’s Landing in order to reach the opinions . .
. .” He opined that the techniques used by Woods were techniques
that are generally accepted in the community of Florida and
national professional engineers when investigating building
conditions at projects similar to Heron’s Landing and were
consistent with the intent of the peer-reviewed techniques
published by the ASTM. He also opined that the methodology used
was sufficiently reliable and had widespread acceptance within the
relevant scientific community. As such, Appellant’s argument that
8
Appellee’s experts’ opinions were based upon new or novel
scientific methods or techniques and that a Frye analysis is
necessary is without merit. Appellant has shown no error on the
trial court’s part in admitting the evidence at issue.
In its second issue, Appellant argues that the trial court erred
in failing to grant its motion for a directed verdict. An order on a
motion for directed verdict is reviewed de novo. Kopel v. Kopel, 229
So. 3d 812, 819 (Fla. 2017). The denial of such a motion must be
affirmed “if any reasonable view of the evidence could sustain a
verdict in favor of the non-moving party.” Id. All evidence and
inferences of fact must be viewed in the light most favorable to the
nonmoving party. Id.; see also Coba v. Tricam Indus., Inc., 164 So.
3d 637, 646 (Fla. 2015) (noting that a motion for directed verdict
should be granted only if no view of the evidence could support a
verdict for the nonmoving party and the trial court determines that
no reasonable jury could render a verdict for the party).
Appellant claims that no actual damages were sustained by
Appellee as a result of building code violations. Section 553.84,
Florida Statutes (2013), provides:
Notwithstanding any other remedies available, any
person or party, in an individual capacity or on behalf of
a class of persons or parties, damaged as a result of a
violation of this part or the Florida Building Code, has a
cause of action in any court of competent jurisdiction
against the person or party who committed the violation;
however, if the person or party obtains the required
building permits and any local government or public
agency with authority to enforce the Florida Building
Code approves the plans, if the construction project
passes all required inspections under the code, and if
there is no personal injury or damage to property other
than the property that is the subject of the permits, plans,
and inspections, this section does not apply unless the
person or party knew or should have known that the
violation existed.
As Appellant points out, none of the cases that have cited this
statute, which was enacted in 1974, have held that a claim under
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the statute can succeed without proving actual damages. The Fifth
District has described section 553.84 as providing a “cause of
action where a defendant has injured a plaintiff by violating the
building code or doing construction without the required permit.”
Stallings v. Kennedy Elec., Inc., 710 So. 2d 195, 195 (Fla. 5th DCA
1998). The Second District has described section 553.84 as “a
remedial statute because it provides relief for a person whose home
has been built in violation of the building code . . . .” Anderson v.
Taylor Morrison of Fla., Inc., 223 So. 3d 1088, 1089 (Fla. 2d DCA
2017).
Other cases, while not addressing the specific issue raised in
this appeal, show that homeowners have brought claims under the
statute for defects similar to the ones alleged in this case. For
instance, in Edward J. Seibert, A.I.A, Architect & Planner, P.A. v.
Bayport Beach & Tennis Club Ass’n, 573 So. 2d 889, 890 (Fla. 2d
DCA 1990), the appellants challenged a final judgment entered
against them and in favor of the appellee. The Second District
explained that the appellee was a condominium development; the
appellant was the architect. Id. In its lawsuit against the
appellant and others, the appellee claimed that the appellant was
responsible for damages because of defective roofing design and
construction, defective fire exit design, defective stucco design and
construction, and defective ceiling slab design. Id. at 890-91. In
Anderson, the issue was the interpretation of an arbitration
provision. 223 So. 3d at 1089. However, it was noted that the
appellants, who entered into a sales agreement with the appellee
builder to purchase a home, filed a complaint against the appellee
alleging in part a violation of the Florida Building Code by
inadequately and improperly installing the stucco system on their
home. Id. They claimed the code violations were latent and not
readily observable or known to them until damages began to
manifest themselves in the form of cracking to the exterior stucco
years after construction ended. Id. The Second District reversed
the order compelling arbitration and remanded the matter to the
trial court for further proceedings “on the . . . complaint.” Id.
In support of its argument, Appellant relies in part upon
Eagle-Picher Industries, Inc. v. Cox, 481 So. 2d 517 (Fla. 3d DCA
1985). There, the Third District, in addressing cancer-related
asbestosis, held that damages were not recoverable for the future
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risk of cancer. Id. at 526. This case presents a different issue than
someone’s exposure to a dangerous substance and possible future
illness as a result. Here, numerous homeowners testified to issues
they were having in their homes. Moreover, Appellee presented
expert testimony regarding defects in the units – defects that,
according to the experts, needed to be remedied to avoid additional
loss and damage. Appellant’s own project supervisor
acknowledged several defects and testified that had he seen or
known about them, he would have had them remedied prior to the
completion of the project. Therefore, we reject Appellant’s
argument that Appellee failed to present evidence of actual
damages.
Within its second issue, Appellant also asserts that Appellee
did not present evidence that it knew or should have known of
building code violations under section 553.84. We reject this
argument as well. As stated, Appellant’s project supervisor
acknowledged at trial that various problems existed at Heron’s
Landing. When asked if he ever complained to Appellant that he
was being handicapped, he replied, “I requested more information
about certain things, yes.” He also testified, “Not everything that
I needed, that I felt like I needed, to do the job. They gave me what
they felt like I needed to get the job done.” Thus, the jury was
presented with evidence that Appellant either knew or should
have known about the issues at Heron’s Landing.
Appellant also asserts that Appellee did not establish a breach
of the implied warranty of habitability. As Appellant notes, section
718.203(1), Florida Statutes (2013), provides that a “developer
shall be deemed to have granted to the purchaser of each
[condominium] unit an implied warranty of fitness and
merchantability for the purposes or uses intended.” “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.” §
718.203(2), Fla. Stat. (2013). As the supreme court has explained,
“The general test for whether a party has breached the implied
warranties of fitness and merchantability [for a new home] ‘is
whether the premises meet ordinary, normal standards reasonably
to be expected of living quarters of comparable kind and quality.’”
Maronda Homes, Inc. of Fla. v. Lakeview Reserve Homeowners
11
Ass’n, 127 So. 3d 1258, 1268 (Fla. 2013) (citation omitted). In other
words, a warranty is breached “if the residence is rendered not
reasonably fit for the ordinary or general purpose intended.” Id.;
see also Schmeck v. Sea Oats Condo. Ass’n, 441 So. 2d 1092, 1097
(Fla. 5th DCA 1983) (“It is now well established that a developer
may be held liable for damages for breach of implied warranties in
failure to construct according to plans or in a workmanlike or
acceptable manner, or for failure to provide a unit or building
which is reasonably habitable.”).
According to Appellant, because none of the unit owners or the
experts testified that there was an inability to inhabit the units,
the use for which they were intended, the trial court should have
granted a directed verdict as to the implied warranty claim. Thus,
Appellant takes the position that in order to breach the implied
warranty set forth in section 718.203, a condominium unit must be
uninhabitable. However, nothing Appellant cites supports this
position. As we stated, numerous homeowners testified about
various problems they were experiencing with their condominium
units. Although the defects did not force the homeowners to
abandon their homes, the testimony certainly supported the jury’s
determination that the units did not meet the ordinary, normal
standards that were reasonably to be expected of living quarters of
comparable kind and quality. Thus, the trial court did not err in
denying Appellant’s motion for directed verdict on this ground.
CONCLUSION
For the reasons expressed herein, we find no error in the trial
court’s admission of Appellee’s expert testimony or in its denial of
Appellant’s motion for a directed verdict. Accordingly, we affirm
the final judgment.
AFFIRMED.
WETHERELL and WINOKUR, JJ., concur.
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_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Kimberly A. Ashby of Foley & Lardner LLP, Orlando; Ian P. Gillan
and Justin M. Leise of Koeller, Nebeker, Carlson & Haluck, LLP,
Orlando, for Appellant.
Michael J. Korn of Korn & Zehmer, P.A., Jacksonville; Barry B.
Ansbacher of Ansbacher Law, Jacksonville, for Appellee.
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