In short: The Third District affirmed the defense verdict for the contractor. Mid-trial, the court measured repair costs as of 2015, and the association accepted that without asking to reopen evidence or for a mistrial. A failure of proof not caused by judicial error does not earn a new trial, and on two claims the jury never reached damages.
The Facts
Eloquence on the Bay, a condominium association, sued the developer and general contractor CDC Builders in 2016 over construction and design defects. Against CDC it alleged breach of the statutory implied warranty of fitness, negligence, and violation of the Florida Building Code. Before trial, both sides proposed instructions defining damages as the reasonable cost of necessary repairs. Neither raised the date as of which to measure those costs.
During the eight-day trial, the court directed a verdict that CDC violated a building code provision on the post-tensioning system, since both sides’ experts agreed. The jury still had to decide whether CDC knew or should have known of the violation and whether it caused damage. On day six, CDC proposed a new instruction measuring repair cost at the time of breach, which it argued was turnover in 2015. The association objected that its claims were not contract claims. The court agreed with CDC, and the association then accepted the 2015 date.
The association did not reopen evidence, recall its damages expert, ask for a mistrial, or seek a verdict question on timing. CDC argued in closing that there was no evidence of 2015 repair costs. The jury found CDC should have known of the code violation but that the violation did not cause property damage. It also found for CDC on the other claims. The trial court denied a new trial.
The Decision
The Third District affirmed. A party that fails to prove the correct measure of damages gets a new trial only when the failure resulted from judicial error. Here, when the instruction was given, neither side had offered 2015 cost evidence. The association accepted the 2015 date and did not use the tools available to fix the gap. Its complaint that the instruction misled the jury was not raised at trial, so it was not preserved.
On the warranty and negligence claims, the jury found no liability and never reached damages. Any error in the damages instruction was therefore harmless as to those claims.
The Law
section 553.84 gives anyone damaged by a material Florida Building Code violation a civil action against the party that committed it. If the work was permitted, plans were approved, and inspections were passed, the plaintiff must also show the defendant knew or should have known of the violation. The plaintiff must still prove the violation caused the damage.
Jury instructions and new-trial rulings are reviewed for abuse of discretion. To preserve an instruction error, a party must object on the specific ground it later raises. Under Special v. West Boca Medical Center, an error is harmless if the party that benefited shows it did not contribute to the verdict.
Lessons
- Pin down the damages measurement date in pretrial instructions. Do not leave it for mid-trial.
- If the court changes the law of the case during trial, ask for relief on the record: reopen the evidence, recall the expert, or move for a mistrial.
- Object on every ground, including that the change misleads the jury or is unfair. Unstated grounds are lost on appeal.
- Proving a code violation is not enough under section 553.84. You must prove it caused damage.
Watch the Oral Argument
This is the recording of the actual oral argument, posted on the channel. What lawyers and judges say at argument is not the ruling; the decision is summarized above.
Condo Construction Defect Trial: When Is a Mid-Trial Damages Instruction Change Reversible? | Eloquence on the Bay v. CDC Builders
Go Deeper
- Florida Condo Owners' Rights: Special Assessments, Records, and Disputes With the Association
- How Appeals Work in Florida: The 30-Day Deadline, Costs, and What a PCA Means
Frequently Asked Questions
Can a Florida condo association sue a contractor for building code violations?
Yes. Section 553.84 creates a civil action for anyone damaged by a material Florida Building Code violation. If permits, approved plans, and inspections were in place, the plaintiff must also show the contractor knew or should have known of the violation, and must always prove the violation caused damage.
When are construction defect repair costs measured in Florida?
It can depend on the claim. In Eloquence, the trial court accepted the contractor’s argument that repair cost should be measured at the time of breach, which it said was the 2015 turnover. The appellate court did not decide whether that was right. It held the association had accepted the instruction and failed to preserve its objection.
Can a judge change jury instructions in the middle of trial?
A judge can rule on instructions until they are given. When a change affects what must be proved, the affected party should promptly ask to reopen evidence, recall witnesses, or seek a mistrial. In Eloquence, failing to ask for that relief defeated the new-trial request.
What is harmless error in a Florida civil appeal?
An error is harmless if the party that benefited from it shows it did not contribute to the verdict. In Eloquence, the jury found no liability on two claims, so it never reached damages. Any problem with the damages instruction could not have affected those results.
Talk to a Florida condominium and real estate lawyer
Weidner Law, P.A. handles Florida condominium and real estate disputes from St. Petersburg. If you need a real estate litigation lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: every Florida statute and court rule is on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
