[RPPTL-constructionlaw] [RPPTL-constructionlaw QUESTION BUT LOOKING FOR A VERY SPECIFIC CASE ONLY
Greg Elliott
gelliott at elliott-berger.com
Thu Apr 19 07:18:41 PDT 2012
I have had the opportunity to be on "both sides" of issues such as this
several times over the last few years. They usually come to me after
the person doing unlicensed contracting (or the specialty licensed
contractor exceeding the scope of his license) has been charged
criminally with engaging in unlicensed contracting. These sort of
arrangements surely happen quite often, and no one is the wiser so long
as the "homeowner" is happy with the work, and the "unlicensed
contractor" is happy with what he is paid. They always come out quite
badly when one or the other becomes unhappy.
If the owner becomes unhappy, but has paid the UC all or much of the
price, they eventually complain to the local Contractor's Licensing
Board, or the DBPR and CILB. Even if the owner is happy, but doesn't
care to pay the UC the price they agreed, as soon as the UC becomes too
much of an irritation by demanding his money, the complain to the local
CLB or the DBPR. Whether from the local Board, or the DBPR, eventually
those complaints for unlicensed contracting wind up in the local State
Attorney's consumer fraud division, charges are filed and first
appearances are scheduled. At the end of the day, there is really no
worthy defense so you try to get a withhold of adjudication on a no
contest plea in exchange for a minimum fine, court costs and probation.
The probation is where the dollars issue and pari delicti rubber hits
the road.
The State attorney's biggest issue in working these prosecutions out is
the restitution to the "aggrieved owner" as a condition of probation.
In setting restitution in UC cases the judge has discretion and will
take the owners knowledge and duplicity into account, as well as the
actual dollar amount the now convicted UC has put into improving the
property. In one case where I represented the homeowner that had a
spa installed by a UC, the guy was not worth pursuing civilly so her
best shot was to complain, get him prosecuted and get her money back by
restitution. I understand from the SA handling that, that the judge
significantly diminished the restitution when he was convinced she knew
the guy was not licensed, and was shown to have a pretty clear
understanding of contractor licensing requirements.
A bit collateral, but hopefully useful.
G. Elliott
Gregory T. Elliott
**/ELLIOTT - BERGER, P. A./**//
10225 Ulmerton Road, Suite 4A
Largo, Florida 33771
(727) 360-2600 (Phone)
(727) 360-6588 (Fax)*
Board Certified In Construction Law
*
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On 4/19/2012 9:15 AM, Tom McKeel wrote:
>
> 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] *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 <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 (11^th 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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