[RPPTL-constructionlaw] [RPPTL-constructionlaw QUESTION BUT LOOKING FOR A VERY SPECIFIC CASE ONLY

Thu Apr 19 05:41:27 PDT 2012

To the contrary, there is a case holding disgorgement of fees is still
appropriate.  The court in that case did go off on the owners for
participating in the unlicensed transaction, but then concluded that,
irrespective of their participation, the unlicensed entity is still not
entitled to benefit from its breaking the law and fees were disgorged.
I'll see if I can get someone to find that cite.

Lee A. Weintraub
Board Certified Construction Lawyer
Becker & Poliakoff, P.A.
Emerald Lake Corporate Park
3111 Stirling Road
Fort Lauderdale, FL 33312-6525

954.985.4147 Phone
954.985.4176 Fax

LWeintraub at becker-poliakoff.com
http://www.becker-poliakoff.com

Our clients' total satisfaction is our #1 priority. The Becker & Poliakoff Client CARE Center is available for questions, concerns and suggestions. Please contact us at 954.364.6090 or via email at CARE at becker-poliakoff.com. 

Go to http://www.floridaconstructionlawauthority.com/ to subscribe to our complimentary Florida Construction Law Blog.
________________________________

From: constructionlaw-bounces at lists.flabarrpptl.org
[mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of
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

CONFIDENTIALITY NOTICE: The information and all attachments contained in
this electronic communication are legally privileged and confidential
information, subject to the attorney-client privilege and intended only
for the use of intended recipients. If the reader of this message is not
an intended recipient, you are hereby notified that any review, use,
dissemination, distribution or copying of this communication is strictly
prohibited. If you have received this communication in error, please
notify us immediately of the error by return email and please
permanently remove any copies of this message from your system and do
not retain any copies, whether in electronic or physical form or
otherwise. Unauthorized interception of this e-mail is a violation of
federal criminal law.

TAX ADVICE DISCLOSURE: Pursuant to the requirements of Internal Revenue
Service Circular 230, we advise you that any federal tax advice
contained in this communication (including any attachments) is not
intended or written to be used, and cannot be used, for the purpose of:
(1) avoiding penalties that maybe imposed under the Internal Revenue
Code or (2) promoting, marketing or recommending to another party any
transaction or matter addressed in this communication.

Disclaimer regarding Uniform Electronic Transactions Act ("UETA")
(Florida Statutes Section 668.50): If this communication concerns
negotiation of a contract or agreement, UETA does not apply to this
communication; contract formation in this matter shall occur only with
manually-affixed original signatures on original documents.  Law Offices
of Michael R. Romm, P.A.

	-------- Original Message --------
	Subject: Re: [RPPTL-constructionlaw] Construction Defect jury
	instructions
	From: <lan at lwwhiteattorney.com>
	Date: Wed, April 18, 2012 1:06 pm
	To: "'RPPTL constructionlaw'"
<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] 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.
________________________________

	_______________________________________________
	constructionlaw mailing list
	constructionlaw at lists.flabarrpptl.org
	http://mailman.fsr.com/mailman/listinfo/constructionlaw
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/constructionlaw/attachments/20120419/3397425f/attachment.html>