[CLC-Discussion] FW: [RPPTL-constructionlaw] [RPPTL-constructionlaw QUESTIONBUT LOOKING FOR A VERY SPECIFIC CASE ONLY
Tim Atkinson
TAtkinson at ohfc.com
Mon Apr 23 13:00:55 PDT 2012
Hi Chuck –
An unlicensed contractor should not get very far by arguing about the term “qualified” in Section 489.105(3), F.S. This section defines a “contractor” for purposes of regulating a contractor’s activities. Section 489.127(1)(f), F.S. is going to capture the unlicensed contractor if he or she conducts activities requiring a license. The contractor is “qualified” in terms of DBPR licensure and by responsibility over the project at issue. The contractor may also “qualify” a business entity pursuant to Section 489.119(2), F.S.
For example, a person may hold a residential contractor’s license, but that means they are unqualified to contract a 4-story building. It may also mean that the individual license holder may not run the project through an company he or she has not “qualified” by licensure.
See also, Sections, 489.103(2)(a), 489.103(9)(b), 489.103(17)(b), and 489.115(2)(a), F.S., which mention and use the term “qualified.”
Tim
Timothy P. Atkinson*
Oertel, Fernandez, Bryant & Atkinson, P.A.
PO Box 1110, Tallahassee, FL 32302
850.521.0700-w | 850.521.0720-f | 850.544.5304-m
* Board Certified State and Federal
Government and Administrative Practice
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From: clc-discussion-bounces at lists.flabarrpptl.org [mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Roberts, Hardy L.
Sent: Monday, April 23, 2012 2:45 PM
To: clc-discussion at lists.flabarrpptl.org
Subject: [CLC-Discussion] FW: [RPPTL-constructionlaw] [RPPTL-constructionlaw QUESTIONBUT LOOKING FOR A VERY SPECIFIC CASE ONLY
This email is re-posting Chuck’s request to the CLC-discussion listserv rather than CLC Classic. Please feel free to reply to this email (and thereby to the entire CLC-Discussion listserv) or reply directly to Chuck at cpy at esclaw.com<mailto:cpy at esclaw.com>.
From: constructionlaw-bounces at lists.flabarrpptl.org<mailto:constructionlaw-bounces at lists.flabarrpptl.org> [mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of Chuck Young
Sent: Thursday, April 19, 2012 11:38 AM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] [RPPTL-constructionlaw QUESTIONBUT LOOKING FOR A VERY SPECIFIC CASE ONLY
Can an unlicensed contractor try to use the definition of “contractor”, which includes the term “compensation”, for protection from unlicensed contracting issues, when the definition also includes the term “qualified”?
Charles P. Young
Board Certified Construction Attorney
Emmanuel Sheppard & Condon
30 South Spring Street
Pensacola, FL 32502
Main: 850-433-6581
Direct: 850-444-3823
Fax: 850-434-5856
cpy at esclaw.com<mailto:cpy at esclaw.com>
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From: constructionlaw-bounces at lists.flabarrpptl.org<mailto:constructionlaw-bounces at lists.flabarrpptl.org> [mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of Andrea Fair
Sent: Thursday, April 19, 2012 10:09 AM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] [RPPTL-constructionlaw QUESTIONBUT LOOKING FOR A VERY SPECIFIC CASE ONLY
I understand but also see 489.105(3) "Contractor" means the person who is qualified for, and is only responsible for, the project contracted for and means, except as exempted in this part, the person who, for compensation, undertakes to, submits a bid to, or does himself or herself or by others construct, repair, alter, remodel, add to, demolish, subtract from, or improve any building or structure, including related improvements to real estate, for others or for resale to others . . .
Bottom line: I think the law is in favor of the owner vs. the unlicensed (or under-licensed) contractor but sometime we have to get creative to try to help our clients who have created a mess for themselves.
Andrea M. Fair-Purcell
Board Certified Construction Attorney
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FAIR•LAW•PLLC
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13046 Racetrack Road #236
Tampa, FL 33626
(813) 412-1077 phone
(877) 879-4990 fax
www.fairconstructionliens.com<http://www.fairconstructionliens.com>
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From: constructionlaw-bounces at lists.flabarrpptl.org<mailto:constructionlaw-bounces at lists.flabarrpptl.org> [mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of Reese J. Henderson, Jr.
Sent: Thursday, April 19, 2012 10:51 AM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] [RPPTL-constructionlaw QUESTIONBUT LOOKING FOR A VERY SPECIFIC CASE ONLY
I have to disagree with your last point, Andrea. Chapter 489 is quite clear that the mere offering of construction services is contracting, regardless of whether you end up charging for it. See sec. 489.105(6), F.S. (stating "The attempted sale of contracting services and the negotiation or bid for a contract on these services also constitutes contracting."). So the mere fact a contractor later elects not to charge for services originally bid and sold with the intent to charge for them (but which are outside the contractor's license) is probably not going to be a winning argument. The intent is still there to evade the statute, which I don't the courts would condone.
Reese
Reese J. Henderson, Jr.
Shareholder
GrayRobinson, P.A.
50 North Laura Street, Suite 1100
Jacksonville, Florida 32202
Main: 904-598-9929 | Fax: 904-598-9109
Email: Reese.Henderson at gray-robinson.com<mailto:Reese.Henderson at gray-robinson.com>
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From: constructionlaw-bounces at lists.flabarrpptl.org<mailto:constructionlaw-bounces at lists.flabarrpptl.org> [mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of Andrea Fair
Sent: Thursday, April 19, 2012 9:49 AM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] [RPPTL-constructionlaw QUESTIONBUT LOOKING FOR A VERY SPECIFIC CASE ONLY
I sued a contractor who had a carpentry license but who performed work beyond the scope of his license. Among other things, I sued for rescission and replevin and won on summary judgment. I think, at this point, even if the owner is an active participant in the illegal activity, it’s the contractor who loses. It’s unfortunate that the penalties are not somehow equally shared when the owner knowingly hires an unlicensed contractor but I believe that is the state of the law.
I also represented a contractor who performed work beyond the scope of his license but we partially released his lien for the amounts due for the work not covered by his license. The judge still ruled against us but, if my client had never charged for that work (as opposed to later deciding to concede on that money), I think the argument would have been stronger. I can’t remember the statute off the top of my head but there is one that essentially defines contracting and one element is that you are actually charging for the work. If you’re doing it for free, then it’s not contracting. Obviously, that doesn’t help if the contractor has no license at all.
Andrea M. Fair-Purcell
Board Certified Construction Attorney
▬▬▬▬▬▬▬▬▬▬▬▬
FAIR•LAW•PLLC
▬▬▬▬▬▬▬▬▬▬▬▬
13046 Racetrack Road #236
Tampa, FL 33626
(813) 412-1077 phone
(877) 879-4990 fax
www.fairconstructionliens.com<http://www.fairconstructionliens.com>
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From: constructionlaw-bounces at lists.flabarrpptl.org<mailto:constructionlaw-bounces at lists.flabarrpptl.org> [mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of Tom McKeel
Sent: Thursday, April 19, 2012 9:16 AM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] [RPPTL-constructionlaw QUESTION BUT LOOKING FOR A VERY SPECIFIC CASE ONLY
Jeff Regan in Jacksonville related to me a case he had that I think involved an unlicensed contractor and it involved, if I am not mistaken, the disgorgement of $400,000.00. It might be helpful to call Jeff Regan. 904-356-1300
________________________________
From: constructionlaw-bounces at lists.flabarrpptl.org<mailto:constructionlaw-bounces at lists.flabarrpptl.org> [mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of mromm at rommlaw.com<mailto:mromm at rommlaw.com>
Sent: Thursday, April 19, 2012 8:35 AM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] [RPPTL-constructionlaw QUESTION BUT LOOKING FOR A VERY SPECIFIC CASE ONLY
Hi everyone...Michael Romm again: You may remember we were talking before about permitting...I had a client call me last night. = He is an unlicensed contractor. He did a 23000.00 kitchen/house remodel. He was paid 20K when owners got upset with him....
Key point and then question: At beginning of deal unlicensed contractor said to Mr. and Mrs. homeowner: "I am not a licensed contractor. Do you understand that? "YES" they said. "THAT is exactly why we want to hire you. We don't want a licensed contractor. We like you."
"Okay....well you really should pull a permit on this job. You can do it yourself or I can have one of my licensed friends pull it for you..." said the unlicensed contractor.
"NO!. We don't want a permit pulled. We don't want to wait that long and we don't want to pay for it either". said the homeowners.
"OKAY" said the unlicensed contractor....
Now, Owners are suing unlicensed contractor to get their 20K back from him even though work was substantially and properly completed ("substantially and properly - meaning it would have been a lien-able job if it had been done by a licensed contractor who pulled a permit!)
SPECIFIC QUESTION: I recall a case recently mentioned by our group where the court said,
COURT: I will not permit you (the homeowners) who have participated and schemed and practically requested the unlawful activity to use that same unlawful activity to benefit against the contractor." Anybody know that case? Cite maybe? I only need that specific case because I am thinking that I go to the Judge, make one motion and the judge either buys the case and the argument and throws out the lawsuit...or I tell my client he is going to lose the case....
Michael Romm
Michael R. Romm, P.A.
1213 S. 30th Avenue, Suite 2, Hollywood, FL 33020
Phone: (954) 557-8002
Fax: (954) 208-0022
mromm at rommlaw.com<mailto:mromm at rommlaw.com>
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-------- Original Message --------
Subject: Re: [RPPTL-constructionlaw] Construction Defect jury
instructions
From: <lan at lwwhiteattorney.com<mailto:lan at lwwhiteattorney.com>>
Date: Wed, April 18, 2012 1:06 pm
To: "'RPPTL constructionlaw'" <constructionlaw at lists.flabarrpptl.org<mailto:constructionlaw at lists.flabarrpptl.org>>
These cites and summaries should help.
Substantial performance applies when actual performance is nearly equivalent to what was bargained for, so that owner can use the property for the intended purpose. J. M. Beeson Co. v. Sartori, 553 So.2d 180 (Fla 4 DCA 1989); Strategic Resources Group, Inc. v. Knight Ridder, Inc., 870 So.2d 846 (Fla 3 DCA 2003); Waters v. International Precious Metals Corp., 273 F3d 1273 (11th Cir 2001).
Casa Linda Tile & Marble Installers, Inc. v. Highlands Place 1981, Ltd., 642 So.2d 766 (Fla. 4 DCA 1994). The DCA noted that where a contractor has substantially performed and otherwise complied with the construction lien statute, it is entitled to award on its mechanic’s lien claim for the contract price less all damages caused by its failure to render full performance. Substantial performance is defined as that performance of a contract which while not full performance is so nearly equivalent to what was bargained for that it would be unreasonable to deny the promisee the full contract price subject to the promisor’s right to recover whatever damages may have been occasioned him by the promisor’s failure to render full performance.
Kenmark Construction, Inc. v. Michael Cronin, 765 So.2d 129 (Fla. 2d DCA 2000). The contractor sued the owner for foreclosure of a construction lien. The owner counterclaimed seeking damages for breach of contract. The trial court stated it doubted whether the contractor built the house in a proper and workmanlike manner or that the owner would be able to use the house in the way he wanted. Nevertheless, the trial court entered judgment of foreclosure in favor of the contractor. The trial court, however, declined to award attorney’s fees to either party. HELD: Reversed as to denial of attorney’s fees. It is well settled that judgment on a construction lien requires a determination of substantial performance rather than strict performance, citing Poranski v. Millings, 82 So.2d 675 (Fla. 1955). The trial judge’s decision is consistent with a determination of substantial performance and did not find a breach of contract by the contractor.
Lockhart v. Worsham, 508 So.2d 411 (Fla 1 DCA 1987). Worsham, the general contractor, was doing a kitchen and porch remodeling and installing a built up roof. The cabinets were not sufficient deep and the dishwasher protruded into the space where a drawer would otherwise open. The roof was to have been 5 ply insulated, but the contractor installed only a 3 ply roof, with no insulation. The trial court found that the contractor had breached the contract, but that the contractor had attempted in good faith to correct the items and its breach was not willful or intentional. Accordingly, the trial court only awarded a nominal amount to cut a piece out of the drawer to allow it to open despite the protruding dishwasher and simply allowed a credit for the missing insulation. The home owner then appealed. HELD: Reversed. While the trial court was correct in finding that the contract was breached, it appears the trial court wrongfully intended to apply the doctrine of substantial performance. However, that doctrine is applicable only where a variance from the specifications of the contract is inadvertent or unintentional and unimportant so that the work performed is substantially what was bargained for. Under these facts the doctrine should not be applied. The measure of damages accruing to the homeowner is the reasonable cost of making the work conform to the contract.
The Lockhart holding reflects a view under prior law that residences were exceptions to the substantial performance doctrine. That view is no longer the law, and is tempered by the Economic Waste Doctrine, which applies to situations where the cost of correcting the deficiencies is grossly disproportionate to the value of the completed structure. In such circumstances, the damages can be measured by the difference in value of the structure contracted for and the structure received, as opposed to the cost of correcting the deficiencies.
Grossman Holdings, Ltd v. Hourihan, 414 So.2d 1037 (Fla. 1982). - house built facing the wrong direction so owner didn’t get the intended view. Court held that “[f]or defective or unfinished construction, a plaintiff can recover a judgment for either:
(1) The reasonable cost of construction and completion in accordance with the contract,
if this is possible and does not involve unreasonable economic waste; or
(2) The difference between the value that the product contracted for would have had and
the value of the performance that has been received by the plaintiff, if the construction
and completion in accordance with the contract would involve unreasonable economic
waste.
Aponte v. Exotic Pools, Inc., 699 So.2d 796 (Fla. 4th DCA 1997).
Where the performance on a contract is defective, the proper measure of damages is the reasonable cost of making the performed work conform to the contract. This maxim is subject to the exception that, where construction in accordance with the contract would involve unreasonable economic waste, the measure of damage for defective construction is the difference between the value of the item contracted for and the value of the performance
received.
Regards,
Lan White
(727) 797-5599
From: constructionlaw-bounces at lists.flabarrpptl.org<mailto:constructionlaw-bounces at lists.flabarrpptl.org> [mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of Fitzsimmons, Bob
Sent: Wednesday, April 18, 2012 11:09 AM
To: RPPTL constructionlaw; jim at mccraelaw.com<mailto:jim at mccraelaw.com>
Subject: Re: [RPPTL-constructionlaw] Construction Defect jury instructions
Does anyone have a set they are willing to share?
Also, can anyone identify a case stating that an owner is not entitled to a "perfect" building?
Thanks.
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