Orlando Sentinel - 11/19/04
Brevard couple upset by leaking home face lawsuit
By Dan Tracy
Sentinel Staff Writer
November 19, 2004
Jay Ann Contardi was angry that her $200,000 home near Melbourne leaked before, during and after last summer's hurricanes. And when her builder, Mercedes Homes Inc., refused to fix the damage, she got her neighbors together last month to talk about it.
That got some action -- but not what Contardi had in mind.
Mercedes promptly sued the 43-year-old homemaker and her husband, Rock, in state Circuit Court, alleging defamation and breach of contract.
Turns out the contract that the couple signed with the builder in 2002 contained a clause forbidding them from, among other things, making "disparaging remarks" about Mercedes in any fashion or form.
"I just feel totally violated," Jay Ann Contardi said. "They are so intimidating and scaring people."
The civil lawsuit, filed in Brevard County, does not seek a specified amount of money. But it does point out that every alleged instance of ill will against Mercedes could cost $500, according to terms of the contract.
Attorney Patrick Rochesaid Mercedes sued the Contardis because the couple organized a meeting of about 100 residents of the Glenhaven subdivision to complain about the company. Mercedes, he said, considers the hurricanes "extraordinary circumstances" and will not fix what the Contardis maintain is several thousand dollars worth of warped drywall and ruined carpeting and floors due to leaky windows, doors and walls.
"It's pretty darn nasty," said Joseph Columbo, the Melbourne lawyer representing the Contardis. "They've got a bunch of damage to their house, and now they're getting sued."
The company's position, Roche said, is that the couple should take Mercedes to binding arbitration -- as stipulated in the contract -- rather than saying bad things about his client. "That's not constructive. That's not the way to solve the problem," Roche said.
An estimated 2,000 Central Florida homes sustained water damage from leaky windows, doors and walls when three of this year's hurricanes crossed the region in August and September. Only nine of the region's 33 large production builders have agreed to repair the damage for free. Some homeowners have threatened to sue their builders.
But so far, Mercedes is the only builder to sue a homeowner over hurricane damage.
Mercedes, a family-owned company based in Melbourne, built more than 5,200 houses in Florida, Texas and North Carolina last year. It is one of the few builders that include a confidentiality clause in their sales contract. The Contardis say they never read the clause before signing and would have nixed the deal had they noticed it.
"To me, it would have been a red flag," Jay Ann Contardi said, adding that she rarely visits with her neighbors because she is afraid Mercedes might add more charges to the suit.
She believes her First Amendment right to say what's on her mind has been taken away: "We're Americans here. Last time I checked, we should have freedom of speech."
Mike Fenner, a professor who has taught constitutional law at Creighton University in Nebraska for 30 years, disagreed. He said the First Amendment prevents infringements on speech only by government, not by a real estate contract.
But sometimes, Fenner added, the right to sue isn't always the right thing to do. "The builder," he said, "gets a reputation for not being consumer-friendly."
Dan Tracy can be reached at 407-420-5787 or dtracy@orlandosentinel.com.
