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

Thu Apr 19 06:15:09 PDT 2012

I do not disagree with Lee, but I think Castro v. Sangles 637 So2d 989 still has some value as do the many cases it cites regarding a party being in pari dilecto.  Having been on both sides of similar issues a dozen times or more, my general thought is that both sides can make fairly well supported arguments and thus it’s a crapshoot at the trial level either way, the loser would have a decent shot on appeal, and the loser of the appeal would have a decent shot at the next level.  In sum:  pre-suit mediation with a board certified construction attorney mediator.

Robert E. Doan
Board Certified Construction Attorney
Supreme Court Certified Circuit Civil Mediator
Silverman, Vorhis & Doan
311 NE 1st Street
Gainesville, FL 32601
PH: 352-337-8373
Fax: 352-505-6188
Email: robert at lawgainesville.com
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From: constructionlaw-bounces at lists.flabarrpptl.org [mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of Weintraub, Lee
Sent: Thursday, April 19, 2012 8:41 AM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] [RPPTL-constructionlaw QUESTION BUT LOOKING FOR A VERY SPECIFIC CASE ONLY

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.

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Lee A. Weintraub
Board Certified Construction Lawyer

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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 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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