Casey v. Mistral Condo. Ass'n, Inc.
1st DCA, 3/6/24
No. 1D2022-1540, 2024 WL 955729
Judge Winokur
Topics: Duty, Negligence, Parol Evidence, Summary Judgment
Full Take: Casey rented a condominium unit at Mistral Condominium. In 2013, painters and pressure washers discovered wood rot on the condo’s balcony railings. A 2014 inspection revealed even more wood rot. In late 2015, the condo unit finally contracted with a company to conduct repairs. In early 2016, repairs were completed to all the north-facing balconies, and the repairs had been done to the first floor of the south-facing balconies, but not the second or third south-facing floors (which is where this accident occurred). The company recommended that the second and third floor south-facing balconies be repaired, too, but the condo did not order the recommended repairs.
In April 2016, Casey leaned against the third-floor south-facing balcony railing, it gave way, and he fell three stories onto sand dunes, suffering severe injuries.
Casey sued the condo association for negligence, alleging a duty to exercise a reasonable degree of care in maintaining and repairing the balcony railings. In pretrial discovery, everyone agreed that the Association was the entity responsible for maintenance of the balcony railings.
The Association moved for summary judgment, arguing that express language in the Declaration of Condominium (“DOC”) stated that the balcony belonged to the unit owner, so the owner had the ultimate responsibility to fix it. The Association argued that the pretrial testimony that the Association had the responsibility was barred under the parol evidence rule, as the document was clear.
The Caseys responded that the document was ambiguous based on competing provisions that placed the responsibility of maintaining the balcony on the Association.
The judge sided with the Association, granting summary judgment and finding the terms of the DOC unambiguously placed the burden to repair the balconies on the owner, so the Association had no duty of care.
Judge Winokur notes that the duty element of negligence (duty, breach, causation, and damages) is usually something to be ruled on by the court. “However, if the plaintiff alleges that a written instrument establishes the defendant's duty, and if that instrument contains an ambiguity as to existence or extent of that duty, then the first element becomes a question of fact for the jury to decide.”
Judge Winokur reminds us that under the parol evidence rule, the terms of a valid written contract or instrument cannot be varied by a verbal agreement or other extrinsic evidence where such agreement was made before or at the timeof the instrument in question. The rule inhibits the use of parol evidence from before or at the time of the contract that would contradict, vary, defeat, or modify a complete and unambiguous written instrument, or to charge, add to, or subtract from it, or affect its construction.
In this case, the Association satisfied its initial burden under Rule 1.510(c) by identifying a lack of a duty (pointing to provisions that state that the owner is responsible for balcony repairs). The burden then shifted to the Caseys. They pointed to other portions of the DOC indicating that the Association had the duty to maintain all the balcony railings. This showing satisfied the Caseys burden as the nonmoving party, showing a reasonable interpretation of the DOC that, under Florida substantive law, created a genuine dispute as to a material fact. The competing provisions created ambiguity. Thus, the trial court erred in granting summary judgment.
The trial court also erred in excluding the discovery depositions as parol evidence, because the deponents testified about their actions and their understanding of the DOC well after execution of the written instrument. Such testimony does not fall under the scope of the parol evidence rule. Parol evidence is evidence of intent at the time or prior to the contract, not after it. Evidence of a subsequent oral agreement that alters, modifies, or changes the former existing agreement between the parties is not parol evidence. REVERSED AND REMANDED. The jury will get to decide if the Association had a duty in light of the post-contract conduct and understanding of the parties.
