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

Thu Apr 19 06:07:21 PDT 2012

This might help.

Robert Morris
Freelance Writer - www.dailybusinessreview.com/on_appeal.jsp
Daily Business Review
1 SE 3rd Ave. #900
Miami, FL 33131
Cell: 305-726-8655
DBR Phone: 800-777-7300
Email: morrisra at me.com
www.DailyBusinessReview.com
www.alm.com

Learn more about ALM, visit http://www.alm.com . – ALM, an Integrated Media Company, is a leading provider of news and information for the legal and commercial real estate markets. ALM’s market-leading brands include The American Lawyer, Corporate Counsel, GlobeSt.com, Insight Conferences,Law.com, Law Journal Press, LegalTech, The National Law Journal and Real Estate Forum.

On Apr 19, 2012, at 8:35 AM, <mromm at rommlaw.com> <mromm at rommlaw.com> wrote:

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
_______________________________________________
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/20120419/113bba6a/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: poole.pdf
Type: application/pdf
Size: 57171 bytes
Desc: not available
URL: <http://mailman.fsr.com/pipermail/constructionlaw/attachments/20120419/113bba6a/poole.pdf>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/constructionlaw/attachments/20120419/113bba6a/attachment-0001.html>