IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

JOSHUA S. FRIEBEL and 

ELIZABETH F. FRIEBEL,

husband and wife,

Plaintiffs,

vs. CASE NO. 5:10-cv-120/RS-EMT

PARADISE SHORES OF BAY COUNTY,

LLC, a Florida limited liability company;

ROBERT E. BLACKERBY, an individual;

MAGNUM CAPITAL, LLC, a Florida limited

liability company; DURDEN ENTERPRISES

II, INC., a Delaware corporation; DURDEN

ENTERPRISES, LLC, a Florida limited

liability company; ESTATE OF KEDRICK

EARL DURDEN; MICHAEL EARL DURDEN,

as Personal Representative of the Estate of

Kedrick Earl Durden; and MH I, LLC, a Florida

limited liability company, 

Defendants.

_________________________________________/

JUDGMENT

Procedural History

The procedural history of this case is complicated. In May 2010, Plaintiffs filed a 

ten-count complaint alleging defects in the condominium unit they purchased from 

certain defendants or defendant related entities. (See Doc. 1). The Plaintiffs amended 

their complaint in September 2010. (See Doc. 38). This Amended Complaint added 

additional defendants and claims. I granted summary judgment in favor of some

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defendants as to certain claims. (See Docs. 133 & 160). A nonjury trial was conducted 

before the Court June 27, 2011, through July 1, 2011. 

Midway through trial, Plaintiffs dismissed Defendants Durden Enterprises II, Inc., 

Durden Enterprises, LLC, Estate of Kedrick Earl Durden, and Michael Earl Durden. 

(“Durden defendants”). In addition, Plaintiffs dismissed numerous claims against 

Defendant Paradise Shores of Bay County LLC, (“Paradise Shores”). (Tr. 442). Later, 

Plaintiffs entered into a settlement agreement with Defendants Robert E. Blackerby, MH 

I, LLC, and Magnum Capital, LLC (“Blackerby defendants”). (Tr. at 545-546). As a 

result, Plaintiffs agreed to pay the Blackerby defendants $100,000, and dismiss the 

Blackerby defendants with prejudice. Id. After Plaintiffs rested their case (Tr. 555), 

Plaintiffs terminated their relationship with their lawyer and elected to proceed pro se. 

(Tr. at 589-90); (Doc. 328). 

At the close of the trial, all that remained were five-counts against Paradise 

Shores: Count I for fraud, Count II for fraudulent concealment, Count VII for Breach of 

Contract, Count VIII for Breach of Warranty, and Count XI seeking recission. (Tr. 422). 

Following trial, the parties submitted their proposed findings of fact and conclusions of 

law. (Docs. 353 & 361). Before I could consider these post-trial briefings, Plaintiffs 

filed for bankruptcy. (See Doc. 358). Judgment in this case has been stayed pending 

resolution of the bankruptcy case. (See Doc. 368). This stay has now been lifted for the 

sole purpose of entering judgment in this case. (Doc. 368, Attach. 1). 

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Findings of Fact

Plaintiffs, husband and wife, entered into a Purchase and Sale Agreement for Unit 

204 at the Paradise Shores Condominiums in Mexico Beach, Florida on July 10, 2005. 

(PE 1). Plaintiffs signed the agreement, and Robert Blackerby also signed as an

authorized agent for Paradise Shores. Id. Nearly two years after signing the Agreement, 

on June 19, 2007, the property in question was conveyed by warranty deed from the 

grantor, Paradise Shores, to the Plaintiffs. (PE 3). Plaintiffs paid $354,900 for their unit. 

Plaintiffs rented their unit for two years with no complaints. (Tr. 332). During 

this period they were unaware of any structural defects. (Tr. 355). After taking possession 

of unit 204, the Plaintiffs allege that they became aware of numerous defects including, 

among other things, mold, water intrusion, plumbing leaks, and structural defects. (See

Doc. 38). Plaintiffs stopped renting the unit after they because aware of the problems, 

losing approximately $13,900 per year in rental income. (Tr. 351). No governmental 

authority has prohibited renting the units. (Tr. 366). 

Construction of the condominium building began in May 2005. Like many 

construction projections, certain problems were encountered and were remedied. The 

parking garage flooded, soft soil was encountered, balconies were improperly sloped, and 

certain structural defects were discovered. (Tr. 113-115, Tr. 152-153). The structural 

defects are at the heart of Plaintiffs case. Specifically, the concrete floor slabs on several 

floors were “deflected.” Deflection is a bowing in a span of concrete flooring which 

makes the surface unlevel and occurs, to some extent, in all concrete. (Tr. 115-116). In 

this case, the deflection was caused by an insufficient amount of rebar placed into those 

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affected slabs. This deflection caused certain long spans of concrete to bow as much as 

three inches. An average amount of deflection would have been one inch to one and a 

half inches. (Tr. 120, Tr. 154-55, Tr. 191). The second significant problem was that

insufficient concrete had been poured in and around the electrical room which exposed 

conduits which were spaced too closely together. (Tr. 120-22, Tr. 155, Tr. 141-44, Tr. 

191). None of the structural issues directly adjoined plaintiffs’ unit. (Tr. 174). 

After discovering the structural defects, the structural engineer of record, John 

Hurst, P.E., and Hodnett-Hurst Engineers, and the architect, Larry Taylor, designed plans 

and specifications to remedy the defects. (Tr. 99; Tr. 130-31, Tr. 155-57). The structural 

engineer of record certified the repair plans and copies of the plan were provided to the 

Michael Hodges, the building official for the City of Mexico Beach, Florida. The City of 

Mexico Beach approved the repair plan and issued a certificate of occupancy. (Tr. 163, 

Tr. 605, Tr. 616-19, DP 7, DP 8, DP 14). 

The repair plan called for the installation of additional structural columns, 

supports, and steel plates into recessed channels along the top of concrete floor slabs in 

certain locations. (Tr. 121, Tr. 125-26, Tr. 155-57). This combination of steel plates and 

additional columns made the “building stronger now that it’s ever been, or could have 

been.” (Tr. 125). The remediation also included the installation of a leveling compound 

on top of the deflected slabs after installation of the plates for the purpose of achieving a 

level surface, sealing the plate components, and providing additional strength. (Tr. 163-

165). The deflection was remedied in all units including Plaintiffs’ unit. (Tr. 116). 

Likewise, the conduit had been appropriately repaired (Tr. 168). At the time Plaintiffs 

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closed on their unit until today, these remediation measures left the concrete slabs level 

and structurally sound. (Tr. 125-26, Tr. 207-08, Tr. 213, Tr. 215-16). 

The repair of the conduit area was somewhat different. A second slab was poured 

directly beneath this area and attached to the first slab with steel plates and brackets. The 

conduits were left in place. The second slab acted as a new structural member carrying 

the load of the defective first slab—like the first slab was sitting on a table. This repair 

remedied the code violations. (Tr. 724-25). 

Plaintiffs’ structural engineering expert, Mr. Mehltretter, testified that the 

deflection had not been fixed. (Tr. 275-80). This is technically true. “You can’t correct 

deflection. You can [only] correct the problem.” (Tr. 197). Deflection will forever be in 

the slab, but the slabs have been structurally secured and the leveling compound has 

made them flat. (Tr. 197). Steel plates will prevent further deflection. (Tr. 277). 

The remedial measures satisfied the engineer of record, Mr. Matthewson, who

testified that the building was structurally sound and safe for occupancy. (Tr. 812, Tr. 

825). They satisfied Mr. Gershen, a certified general contractor, who was engaged by 

Defendants to oversee the repair work. (Tr. 190-91, Tr. 207-08). Mr. Taylor, the 

architect was satisfied. (Tr. 660-66). They satisfied the engineers at ECM, a firm 

engaged by Mr. Gershen. (Tr. 209). Mr. Mehltretter, Plaintiffs’ key witness, admitted 

that Defendant would be entitled to rely upon ECM and its analysis. (Tr. 314). 

Defendant made no disclosures to Plaintiffs regarding the deflection or repairs. 

Mr. Heifner, a retained professional engineer and licensed Florida structural 

engineer found no evidence of structural damage as recently as February 2011. No 

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competent evidence was introduced which showed a decrease in value related to the 

repairs or the cost to repair the unit. Plaintiffs have not performed any repairs 

themselves. (Tr. 370-71). (Tr. 854-64). Mr. Terry, a retained property appraiser found 

no decrease in value attributable to structural issues. (Tr. 760-61). 

Conclusions of Law

Plaintiffs’ first two counts, for fraud and fraudulent concealment are virtually 

identical. They require (1) A false statement concerning a material fact; (2) Knowledge 

by the person making the statement that the representation is false; (3) The intent by the 

person making the statement that the representation will induce another to act on it; (4) 

Reliance on the representation to the injury of the other party. Tucker v. Mariani, 655 So. 

2d 221 (Fla. 1st DCA1995) (discussing common law fraud). Fraudulent concealment has 

the added element of a duty to disclose. See Johnson v. Davis, 480 So. 2d 625, 628 (Fla. 

1985). Here, the only issue is whether the structural problems and the subsequent repairs 

were material facts which should have been disclosed. 

Plaintiffs have not met their burden because the evidence in the record 

demonstrates that Defendant was reasonable in relying on the assurances of the engineer 

of record, the architect, their retained certified general contractor, the engineers at ECM, 

and the city issued certificate of occupancy. Florida law does not require that a “history 

of construction” be provided to purchasers. Defendants were reasonable to believe that 

the repairs were adequate and that no disclosures had to be made. Further, Plaintiffs have 

failed to establish that the repairs were actually inadequate or that the value of the unit 

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has been diminished. See Spitale v. Smith, 721 So. 2d 341 (Fla. 2d DCA 1998)

(reasonable belief that problem was not ‘major defect’ is not material fact). 

The Breach of Contract claim likewise fails. The purchase and sale agreement 

provides that the developer may make “changes in the plans and specification as may be 

required by sound construction, architectural or engineering practices.” (PE 1at 8). The 

repairs fall within this clause of the contract. Plaintiffs have not established that a breach 

occurred. 

As to the claim for Breach of Warranty, Florida Statute section 718.203 (1) 

provides that a “developer shall be deemed to have granted to the purchaser of each 

[condominium] unit an implied warranty of fitness and merchantability. Plaintiffs have 

failed to establish that their unit is unfit. The certificate of occupancy undermines 

Plaintiffs’ case. 

As to Plaintiffs’ claim for recission, Plaintiffs’ have failed to establish an 

actionable cause which would require this equitable remedy.

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IT IS ORDERED: 

1. Judgment is entered in favor of the remaining Defendant, Paradise Shores of Bay 

County, LLC, and against Plaintiffs, Joshua S. Friebel and Elizabeth F. Friebel, on

all claims, counts and relief sought by them. 

2. Plaintiffs shall take nothing by this action. 

ORDERED on March 19, 2012.

/S/ Richard Smoak 

RICHARD SMOAK

UNITED STATES DISTRICT JUDGE

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