Klaiber v. Freemason Associates, Inc.

Freemason Associates, Inc. (Freemason) (defendant) developed a condominium and sold separate units to James Klaiber and Richard Sienicki (plaintiffs). Klaiber and Sienicki claimed that the condominium’s roof was defective and sued Freemason for fraudulent misrepresentation and breach of warranty. Klaiber and Sienicki both sold their units for more than the purchase prices. Under the sales agreements, Klaiber and Sienicki retained their voting rights in the condominium association with respect to the litigation, bore the costs of any assessment for repairs to the building, and would receive the proceeds of any settlement. The condominium association imposed special assessments on unit owners to recover the cost of repairing the roof and legal fees. Klaiber and Sienicki each paid those special assessments. Klaiber also paid to repair water damage caused by the defective roof; Sienicki paid to remove gas logs from his fireplace; and both Klaiber and Sienicki claimed damages for future special assessments for roof replacement, attorney’s fees, and repair of fireplaces, chimneys, and flues. Freemason moved for summary judgment, arguing that Klaiber and Sienicki could not prove actual damages because they had sold their units at a profit and would not be liable for repairs to the roof, chimneys, and fireplaces. Klaiber and Sienicki maintained that they had alleged an adequate measure of damages because they had paid attorney’s fees and the special assessments for replacing the roof and would be required to pay their proportionate shares of the costs to correct other problems. The trial court entered summary judgment for Freemason. Klaiber and Sienicki appealed.