The Importance of Pleading Alternative Theories in a Lawsuit

Feldman v. Villa Regina Association, Inc., No. 3D10-1328 (Fla. 3d DCA May 2, 2012)

This case involved a number of claims arising from alleged water intrusion, and damage to a condominium unit therefrom. At the inception of the case and throughout, the plaintiff proceeded solely on the theory that the injury to his unit was permanent and sought to recover only the substantial diminution in value of the condominium and loss of use (i.e., fair rental value) damages. At trial, the plaintiff did not prove the cost of restoring the unit and only sought to establish the diminished value of the unit. In doing so, the plaintiff introduced testimony by a licensed appraiser who utilized an estimate by a general contractor for repairs to the unit in determining the diminution in value. The testimony indicated that the estimate for repair was at approximately $1,453,000.

The jury determined that the damages suffered by the plaintiff were temporary, with no diminished value attributable to a permanent injury. However, because the verdict form asked the dollar amount of damages for a temporary injury, the jury determined same to be at $1,453,000, and as there was no evidentiary support for this award, the trial court granted a motion for new trial on damages made by the defendant. The Third District Court of Appeal reversed and remanded the cause for entry of judgment in defendant’s favor on grounds that the plaintiff sought only a diminution in value for a permanent loss which was a claim rejected by the jury, and no basis existed for the restoration damages. In support of this decision, the court cited Resorts Int’l, Inc. v. Charter Air Ctr., Inc., for the proposition that, “It is well settled that, regardless of what the evidence may otherwise show, plaintiff must recover, if at all, on the case made by her declaration.” Resorts Int’l, Inc. v. Charter Air Ctr., Inc., 503 So. 2d 1293, 1295 (Fla. 3d DCA 1987).

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