[RPPTL-constructionlaw] Construction Defect jury instructions

Wed Apr 18 10:06:38 PDT 2012

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] On Behalf Of
Fitzsimmons, Bob
Sent: Wednesday, April 18, 2012 11:09 AM
To: RPPTL constructionlaw; 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.

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/constructionlaw/attachments/20120418/0b35d5f6/attachment.html>