Full Opinion

Third District Court of Appeal State of Florida Opinion filed October 7, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D19-0500 Lower Tribunal No. 14-7687 ________________ Escadote I Corporation and Ivo Grenacher, Appellants, vs. Ocean Three Condominium Association, Inc., Martin Maier, Grace Carroll, Adrian Socolsky, and Yefim Nivoro, Appellees. An Appeal from the Circuit Court for Miami-Dade County, Daryl E. Trawick, Judge. GrayRobinson, P.A., and Juan C. Martinez, for appellants. Hernandez Lee Martinez, LLC, and Jermaine A. Lee, and Eric Hernandez; Cole Scott & Kissane, P.A., and Scott A. Cole, and Lissette M. Gonzalez, for appellees. Before EMAS, C.J., and FERNANDEZ, and LINDSEY, JJ. LINDSEY, J. Escadote I Corporation and its President, Ivo Grenacher, plaintiffs below, appeal from several orders entering final summary judgment in favor of the defendants below. This case stems from alleged water intrusion due to a leaky roof in a condominium unit owned by Escadote. Escadote sued the Ocean Three Condominium Association, Inc. (the “Association”), for violating its statutory and contractual obligation to maintain and repair common elements. Escadote also filed claims against Grace Carroll, Adrian Socolsky, and Yefim Nivoro (collectively, “the Board”), for breach of fiduciary duty and against Martin Maier, the Property Manager, for tortious interference and intentional infliction of emotional distress. For the reasons set forth below, we affirm the lower court’s entry of final summary judgment. I. BACKGROUND In 2003, Escadote purchased a penthouse condominium unit directly beneath the roof system in the Ocean Three Condominium. In 2006, Escadote filed suit against the Association, the Developer, the General Contractor, and the prior owner for water damage resulting from a leaky roof (the “2006 Case”). In 2010, the Association and Escadote settled the 2006 Case for $375,000 in exchange for 2 Escadote’s execution of a release of its claims against the Association (the “2010 Release”). 1 Escadote claims the water intrusion continued, and in 2014, Grenacher and Escadote brought the underlying action against the Association, the Board, and Maier.2 The lower court ultimately granted summary judgment in favor of the Association and the Board, finding the 2010 Release and the doctrine of res judicata barred Escadote’s claims. 3 The lower court also granted summary judgment in favor of Maier on Escadote’s claims for tortious interference and intentional infliction of emotional distress. Escadote and Grenacher timely appealed. II. STANDARD OF REVIEW We review the lower court’s interpretation of a contract de novo, and the same standard applies to the review of the entry of summary judgment. 19650 NE 18th 1 A jury awarded Escadote $2,050,000, the unit’s original purchase price, against the remaining defendants, agreeing with Escadote’s allegations that the unit was not repairable or that repairs would be impracticable. 2 The Association replaced the roof, at Escadote’s expense ($50,000), in 2012. This put a stop to the water intrusion. 3 “Res judicata is a judicial doctrine used to bar parties from relitigating claims previously decided by a final adjudication on the merits.” Woodward v. Woodward, 192 So. 3d 528, 530 (Fla. 4th DCA 2016) (quoting W & W Lumber of Palm Beach, Inc. v. Town & Country Builders, Inc., 35 So. 3d 79, 82-83 (Fla. 4th DCA 2010)). The Association and the Board also argue res judicata on appeal, but Escadote does not address these arguments. 3 Ave. LLC v. Presidential Estates Homeowners Ass’n, Inc., 103 So. 3d 191, 194 (Fla. 3d DCA 2012) (citation omitted); Fernandez v. Homestar at Miller Cove, Inc., 935 So. 2d 547, 550 (Fla. 3d DCA 2006). In reviewing summary judgment, we consider the record in the light most favorable to the non-moving party. Fresnedo v. Porky’s Gym III, Inc., 271 So. 3d 1185, 1186 (Fla. 3d DCA 2019) (citing Turner v. PCR, Inc., 754 So. 2d 683 (Fla. 2000); Davis v. Baez, 208 So. 3d 747 (Fla. 3d DCA 2016)). III. ANALYSIS A. Escadote’s claims against the Association and the Board The lower court’s order granting final summary judgment in favor of the Association and the Board was based on its interpretation of the 2010 Release. According to the Final Judgment: The Court, in interpreting the [2010] Release and the binding sworn statements of Escadote’s corporate representative . . . finds that the purported water intrusion alleged in this case was a continuing water intrusion that was known by the parties at the time of the settlement (i.e. the [2010] Release) in the previous 2006 Case and that it was the intent of the parties from the language within the [2010] Release that any claim for consequential damages arising out of the leak in the subject roof alleged in the 2006 case, would include any water intrusion post- settlement, including the water intrusion alleged in the instant matter. Given that interpretation, the Court finds the claims being asserted against the Association by Escadote are barred by the [2010] Release executed with respect to the 2006 Case. 4 Escadote contends the lower court’s interpretation was in error because the 2010 Release was expressly limited to incidents up through March 24, 2010 and did not release the Association from future failures. We disagree. According to the pertinent language in the 2010 Release, the Releasing Party (Escadote) releases, acquits, and forever discharges the Released Parties (the Association) of and from any and all property damage claims, actions, causes of action, damages or demands, in whatever name or nature, in tort, in contract or by statute, in any manner arisen, arising, or growing out of any property damages, property expenses, or losses sought or claimed, of whatever name or nature, past, present, or future, which in any way arise out of or were the result of the property damage occurring at [the Unit] from inception until March 24, 2010. This release covers any and all property damage claims of the Releasing Party for any consequential damages and expenses which have arisen, arise, or which may hereafter arise out of the incidents or matters which were alleged in, or could have been alleged in CASE NO.: 06-10808 CA 04 . . . except that it does not release claims for future failures of the Ocean Three Condominium Association, Inc. to maintain the common elements. (Emphasis in original). The language in the 2010 Release bars claims, including future claims, that result from property damage that existed before March 24, 2010. It is undisputed that the alleged continuous water intrusion in both the 2006 case and this case result from the same damaged roof that existed before March 24, 2010. Because the 5 underlying claims against the Association and Board arise from the same damaged roof, they fall within the scope of the 2010 Release. More specifically, the water intrusion in both cases resulted from the same damaged roof slab that was not fixed until 2012. According to the operative complaint, “[f]rom the very beginning, Escadote experienced significant problems with water intrusion into the Unit.” The complaint further alleges that during the several years leading up to the March 2010 trial conducted in Escadote’s first lawsuit, “the Unit continued to suffer water intrusion” and “on the very day of jury selection, a flood test was performed by engineers on the roofing system, which proved the roof was still not watertight.” Finally, the complaint states that in September 2012, “the roof was replaced and the cracks in the slab were sealed. . . . Since the replacement of the roof and the sealing of the cracks, Escadote has not experienced any further water intrusion into the Unit . . . .” At the summary judgment hearing, the lower court asked about the continuous nature of the water intrusion: “If you have your own corporate representative saying the water intrusion never stopped, continued from prior to the settlement, after the settlement, then why isn’t this part of the prior claim that was never resolved and that was meant to be settled at the time this settlement was entered into?” Escadote’s position was as follows: [E]very day that goes by and the common elements aren’t fixed, especially with knowledge of what’s happened, is 6 another day that the Association is breaching its duty to maintain the common elements. Every day it’s a breach. So, yes, clearly he’s saying it leaked before, it leaked during and it leaked after. So what? The point is the Association has a duty to maintain the common elements. We do not disagree with Escadote’s position that the Association has a continuing duty to maintain the common elements. However, this does not change the result below or herein. “The ‘common elements’ of a condominium parcel are defined as ‘the portions of the condominium property not included in the units . . . .’” Beach Club Towers Homeowner’s Ass’n., Inc. v. Jones, 231 So. 3d 566, 570 (Fla. 1st DCA 2017) (quoting § 718.103(8), Fla. Stat.)). Surely, there is more comprising “the common elements” of a condominium building than the roof. Pursuant to section 718.108, Florida Statutes (2019), “‘[c]ommon elements’ includes within its meaning the following:” (a) The condominium property which is not included within the units. (b) Easements through units for conduits, ducts, plumbing, wiring, and other facilities for the furnishing of utility services to units and the common elements. (c) An easement of support in every portion of a unit which contributes to the support of a building. (d) The property and installations required for the furnishing of utilities and other services to more than one unit or to the common elements. 7 (2) The declaration may designate other parts of the condominium property as common elements.[4] The Condominium Act, Chapter 718, Florida Statutes, imposes a requirement that the Association maintain the common elements. See § 718.113(1), Fla. Stat. (2019) (“Maintenance of the common elements is the responsibility of the association.”); see also Bailey v. Shelborne Ocean Beach Hotel Condo. Ass’n, Inc., 45 Fla. L. Weekly D1684 (Fla. 3d DCA July 15, 2020). By specifically releasing claims arising out of or resulting from property damage that occurred from the inception of the 2006 Case up until March 24, 2010, the 2010 Release carved out only those damages that were related to the damaged roof while preserving claims for damages with respect to other common elements. In short, there is no dispute that the water intrusion was continuous and resulted from the same damaged roof that existed prior to March 24, 2010. Consequently, the lower court correctly concluded that the underlying claims against the Association and Board were barred by the 2010 Release. B. Escadote’s claims against Maier5 Escadote sued Maier, the property manager, for tortious interference and intentional infliction of emotional distress. With respect to tortious interference, 4 Here, the Declaration also designates the surface water management system and “all portions of the Life Safety Systems” as Common Elements. 5 Maier has filed a separate answer brief addressing these claims. 8 such a claim “exists only against persons who are not parties to the contractual relationship.” Cox v. CSX Intermodal, Inc., 732 So. 2d 1092, 1099 (Fla. 1st DCA 1999) (quoting West v. Troelstrup, 367 So. 2d 253, 255 (Fla. 1st DCA 1979)). An employee is generally considered to be a party to a contractual relationship, so a tortious interference claim will not lie unless the employee acts solely with ulterior purposes and without an honest belief that his actions would benefit his employer. Id.; see also O.E. Smith’s Sons, Inc. v. George, 545 So. 2d 298, 299 (Fla. 1st DCA 1989); Sloan v. Sax, 505 So. 2d 526, 528 (Fla. 3d DCA 1987). Here, Escadote argues there are genuine issues of material fact as to whether Maier acted solely with ulterior purposes or malice. There are not. At most, the evidence, even when considered in the light most favorable to Escadote, shows there was animosity between Maier and Grenacher, Escadote’s President. But there is not a factual dispute that Maier’s actions, which allegedly caused the Association not to repair the roof, were motivated solely by malice. This is so because it is undisputed that the Association twice retained Roof Surveys, an outside independent company, to perform moisture surveys of the roof, both of which concluded the roof was watertight. With respect to his claim for intentional infliction of emotional distress (IIED), Escadote concedes that a high standard applies for asserting such a claim. See Williams v. Worldwide Flight SVCS., Inc., 877 So. 2d 869, 870 (Fla. 3d DCA 9 2004) (“In order to state a cause of action for intentional infliction of emotional distress in Florida, it must be shown that: (1) the wrongdoer’s conduct was intentional or reckless; (2) the conduct was outrageous; (3) the conduct caused emotional distress; and (4) the emotional distress was severe.”); see also Liberty Mut. Ins. Co. v. Steadman, 968 So. 2d 592, 595 (Fla. 2d DCA 2007) (“Whether conduct is outrageous enough to support a claim of intentional infliction of emotional distress is a question of law, not a question of fact.”). Escadote relies on Steadman, a case in which our sister court in the Second District found a justified cause of action for IIED based on an insurance company’s handling of a medical claim. 968 So. 2d at 596. In Steadman, the insurance company and its agent knew about plaintiff’s particular susceptibility to distress based on knowledge of plaintiff’s limited life expectancy. Id. Moreover, the insurance company was in a position of power in relation to the plaintiff. Id. Here, there is no evidence indicating that Grenacher was particularly susceptible to stress. Nor is there any evidence that Maier, the Property Manager, was in such a position of power over him to sustain a claim for IIED. IV. CONCLUSION For the reasons set forth above, we affirm the lower court’s entry of final judgment on all claims. Affirmed. 10