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
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@lwwhiteattorney.com>
Date: Wed, April 18, 2012 1:06 pm
To: "'RPPTL constructionlaw'" <constructionlaw@lists.flabarrpptl.org>#wmQuoteWrapper /* Font Definitions / @font-face {font-family:"Cambria Math"; panose-1:2 4 5 3 5 4 6 3 2 4;}
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#wmQuoteWrapper div.WordSection1 {page:WordSection1;}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@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Fitzsimmons, Bob
Sent: Wednesday, April 18, 2012 11:09 AM
To: RPPTL constructionlaw; jim@mccraelaw.com
Subject: Re: [RPPTL-constructionlaw] Construction Defect jury instructionsDoes 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@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/constructionlaw
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@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@becker-poliakoff.com.
Go to http://www.floridaconstructionlawauthority.com/ to subscribe to our complimentary Florida Construction Law Blog.
From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of
mromm@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@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@lwwhiteattorney.com>
Date: Wed, April 18, 2012 1:06 pm
To: "'RPPTL constructionlaw'"
constructionlaw@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) 797-5599From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of
Fitzsimmons, Bob
Sent: Wednesday, April 18, 2012 11:09 AM
To: RPPTL constructionlaw; jim@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@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/constructionlaw
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@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@rommlaw.com mromm@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@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@lwwhiteattorney.com
Date: Wed, April 18, 2012 1:06 pm
To: "'RPPTL constructionlaw'" constructionlaw@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@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Fitzsimmons, Bob
Sent: Wednesday, April 18, 2012 11:09 AM
To: RPPTL constructionlaw; jim@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@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/constructionlaw
constructionlaw mailing list
constructionlaw@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/constructionlaw
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@lawgainesville.com
[cid:image001.gif@01CD1E0C.C18E1F10]
**This communication is intended for the sole use of the individual to whom
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and exempt from disclosure under applicable law. If the reader of the
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in error, please notify the sender immediately by telephone call. Thank
you.
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@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.
[http://becker-poliakoff.us/graphics/logo_120.gif]
Lee A. Weintraub
Board Certified Construction Lawyer
Emerald Lake Corporate Park
3111 Stirling Road
Fort Lauderdale, FL 33312-6525
954.985.4147 Phone
954.985.4176 Fax
LWeintraub@becker-poliakoff.commailto:LWeintraub@becker-poliakoff.com
www.becker-poliakoff.comhttp://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@becker-poliakoff.commailto:CARE@becker-poliakoff.com.
Click herehttp://www.floridaconstructionlawauthority.com/ to subscribe to our complimentary Florida Construction Law Blog.
From: constructionlaw-bounces@lists.flabarrpptl.orgmailto:constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of mromm@rommlaw.commailto:mromm@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@rommlaw.commailto:mromm@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@lwwhiteattorney.commailto:lan@lwwhiteattorney.com>
Date: Wed, April 18, 2012 1:06 pm
To: "'RPPTL constructionlaw'" <constructionlaw@lists.flabarrpptl.orgmailto:constructionlaw@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@lists.flabarrpptl.orgmailto:constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Fitzsimmons, Bob
Sent: Wednesday, April 18, 2012 11:09 AM
To: RPPTL constructionlaw; jim@mccraelaw.commailto:jim@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@lists.flabarrpptl.orgmailto:constructionlaw@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/constructionlaw
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@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of
mromm@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
mailto:mromm@rommlaw.com mromm@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: < mailto:lan@lwwhiteattorney.com lan@lwwhiteattorney.com>
Date: Wed, April 18, 2012 1:06 pm
To: "'RPPTL constructionlaw'" <
mailto:constructionlaw@lists.flabarrpptl.org
constructionlaw@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: mailto:constructionlaw-bounces@lists.flabarrpptl.org
constructionlaw-bounces@lists.flabarrpptl.org [
mailto:constructionlaw-bounces@lists.flabarrpptl.org
mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of
Fitzsimmons, Bob
Sent: Wednesday, April 18, 2012 11:09 AM
To: RPPTL constructionlaw; mailto:jim@mccraelaw.com jim@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
mailto:constructionlaw@lists.flabarrpptl.org
constructionlaw@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/constructionlaw
http://mailman.fsr.com/mailman/listinfo/constructionlaw
The Kvaerner case is another in pari delicto opinion, but also see the recent Earthtrades case (5th DCA) which recedes from the in pari delicto doctrine.
Warren E. Friedman, Esq.
Peckar & Abramson, P.C.
One Southeast Third Avenue
Suite 3100
Miami, Florida 33131
Tel. 305.358.2600
Fax.305.375.0328
Sent from my BlackBerry
From: Robert E. Doan [mailto:robert@lawgainesville.com]
Sent: Thursday, April 19, 2012 09:15 AM
To: RPPTL constructionlaw constructionlaw@lists.flabarrpptl.org
Subject: Re: [RPPTL-constructionlaw] [RPPTL-constructionlaw QUESTIONBUT LOOKING FOR A VERY SPECIFIC CASE ONLY
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@lawgainesville.com
**This communication is intended for the sole use of the individual to whom
it is addressed and may contain information that is privileged, confidential
and exempt from disclosure under applicable law. If the reader of the
communication is not the intended recipient, or the employee or agent for
delivering the communication to the intended recipient, you are hereby
notified that any dissemination, distribution, or copying of this
communication may be strictly prohibited. If you receive this communication
in error, please notify the sender immediately by telephone call. Thank
you.
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@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.
Becker & Poliakoffhttp://becker-poliakoff.us/graphics/logo_120.gif
Lee A. Weintraub
Board Certified Construction Lawyer
Emerald Lake Corporate Park
3111 Stirling Road
Fort Lauderdale, FL 33312-6525
954.985.4147 Phone
954.985.4176 Fax
LWeintraub@becker-poliakoff.com
www.becker-poliakoff.com
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From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of mromm@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@rommlaw.com mailto:mromm@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.
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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@lwwhiteattorney.com <mailto:lan@lwwhiteattorney.com> >
Date: Wed, April 18, 2012 1:06 pm
To: "'RPPTL constructionlaw'" <constructionlaw@lists.flabarrpptl.org <mailto:constructionlaw@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@lists.flabarrpptl.org <mailto:constructionlaw-bounces@lists.flabarrpptl.org> [mailto:constructionlaw-bounces@lists.flabarrpptl.org <mailto:constructionlaw-bounces@lists.flabarrpptl.org> ] On Behalf Of Fitzsimmons, Bob
Sent: Wednesday, April 18, 2012 11:09 AM
To: RPPTL constructionlaw; jim@mccraelaw.com <mailto:jim@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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I sued a contractor who had a carpentry license but who performed work beyond the scope of his license. Among other things, I sued for rescission and replevin and won on summary judgment. I think, at this point, even if the owner is an active participant in the illegal activity, it’s the contractor who loses. It’s unfortunate that the penalties are not somehow equally shared when the owner knowingly hires an unlicensed contractor but I believe that is the state of the law.
I also represented a contractor who performed work beyond the scope of his license but we partially released his lien for the amounts due for the work not covered by his license. The judge still ruled against us but, if my client had never charged for that work (as opposed to later deciding to concede on that money), I think the argument would have been stronger. I can’t remember the statute off the top of my head but there is one that essentially defines contracting and one element is that you are actually charging for the work. If you’re doing it for free, then it’s not contracting. Obviously, that doesn’t help if the contractor has no license at all.
Andrea M. Fair-Purcell
Board Certified Construction Attorney
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FAIR•LAW•PLLC
▬▬▬▬▬▬▬▬▬▬▬▬
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Tampa, FL 33626
(813) 412-1077 phone
(877) 879-4990 fax
www.fairconstructionliens.comhttp://www.fairconstructionliens.com
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From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Tom McKeel
Sent: Thursday, April 19, 2012 9:16 AM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] [RPPTL-constructionlaw QUESTION BUT LOOKING FOR A VERY SPECIFIC CASE ONLY
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@lists.flabarrpptl.orgmailto:constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of mromm@rommlaw.commailto:mromm@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@rommlaw.commailto:mromm@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@lwwhiteattorney.commailto:lan@lwwhiteattorney.com>
Date: Wed, April 18, 2012 1:06 pm
To: "'RPPTL constructionlaw'" <constructionlaw@lists.flabarrpptl.orgmailto:constructionlaw@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@lists.flabarrpptl.orgmailto:constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Fitzsimmons, Bob
Sent: Wednesday, April 18, 2012 11:09 AM
To: RPPTL constructionlaw; jim@mccraelaw.commailto:jim@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@lists.flabarrpptl.orgmailto:constructionlaw@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/constructionlaw
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@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] *On Behalf Of
*mromm@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@rommlaw.com mailto:mromm@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@lwwhiteattorney.com <mailto:lan@lwwhiteattorney.com>>
Date: Wed, April 18, 2012 1:06 pm
To: "'RPPTL constructionlaw'"
<constructionlaw@lists.flabarrpptl.org
<mailto:constructionlaw@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@lists.flabarrpptl.org_
<mailto:constructionlaw-bounces@lists.flabarrpptl.org>
[_mailto:constructionlaw-bounces@lists.flabarrpptl.org_] *On
Behalf Of *Fitzsimmons, Bob
*Sent:* Wednesday, April 18, 2012 11:09 AM
*To:* RPPTL constructionlaw; _jim@mccraelaw.com_
<mailto:jim@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@lists.flabarrpptl.org_
<mailto:constructionlaw@lists.flabarrpptl.org>
_http://mailman.fsr.com/mailman/listinfo/constructionlaw_
constructionlaw mailing list
constructionlaw@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/constructionlaw
I have to disagree with your last point, Andrea. Chapter 489 is quite clear that the mere offering of construction services is contracting, regardless of whether you end up charging for it. See sec. 489.105(6), F.S. (stating "The attempted sale of contracting services and the negotiation or bid for a contract on these services also constitutes contracting."). So the mere fact a contractor later elects not to charge for services originally bid and sold with the intent to charge for them (but which are outside the contractor's license) is probably not going to be a winning argument. The intent is still there to evade the statute, which I don't the courts would condone.
Reese
Reese J. Henderson, Jr.
Shareholder
GrayRobinson, P.A.
50 North Laura Street, Suite 1100
Jacksonville, Florida 32202
Main: 904-598-9929 | Fax: 904-598-9109
Email: Reese.Henderson@gray-robinson.com
This e-mail is intended only for the individual(s) or entity(s) named within the message. This e-mail might contain legally privileged and confidential information. If you properly received this e-mail as a client or retained expert, please hold it in confidence to protect the attorney-client or work product privileges. Should the intended recipient forward or disclose this message to another person or party, that action could constitute a waiver of the attorney-client privilege. If the reader of this message is not the intended recipient, or the agent responsible to deliver it to the intended recipient, you are hereby notified that any review, dissemination, distribution or copying of this communication is prohibited by the sender and to do so might constitute a violation of the Electronic Communications Privacy Act, 18 U.S.C. section 2510-2521. If this communication was received in error we apologize for the intrusion. Please notify us by reply e-mail and delete the original message without reading same. Nothing in this e-mail message shall, in and of itself, create an attorney-client relationship with the sender.
Disclaimer under Circular 230: Any statements regarding tax matters made herein, including any attachments, are not formal tax opinions by this firm, cannot be relied upon or used by any person to avoid tax penalties, and are not intended to be used or referred to in any marketing or promotional materials.
Please be advised that this law firm may be acting as a debt collector and is attempting to collect a debt and any information provided will be used for that purpose.
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Andrea Fair
Sent: Thursday, April 19, 2012 9:49 AM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] [RPPTL-constructionlaw QUESTIONBUT LOOKING FOR A VERY SPECIFIC CASE ONLY
I sued a contractor who had a carpentry license but who performed work beyond the scope of his license. Among other things, I sued for rescission and replevin and won on summary judgment. I think, at this point, even if the owner is an active participant in the illegal activity, it’s the contractor who loses. It’s unfortunate that the penalties are not somehow equally shared when the owner knowingly hires an unlicensed contractor but I believe that is the state of the law.
I also represented a contractor who performed work beyond the scope of his license but we partially released his lien for the amounts due for the work not covered by his license. The judge still ruled against us but, if my client had never charged for that work (as opposed to later deciding to concede on that money), I think the argument would have been stronger. I can’t remember the statute off the top of my head but there is one that essentially defines contracting and one element is that you are actually charging for the work. If you’re doing it for free, then it’s not contracting. Obviously, that doesn’t help if the contractor has no license at all.
Andrea M. Fair-Purcell
Board Certified Construction Attorney
▬▬▬▬▬▬▬▬▬▬▬▬
FAIR•LAW•PLLC
▬▬▬▬▬▬▬▬▬▬▬▬
13046 Racetrack Road #236
Tampa, FL 33626
(813) 412-1077 phone
(877) 879-4990 fax
www.fairconstructionliens.com http://www.fairconstructionliens.com
The contents of this e-mail message and any attachments are intended solely for the addressee(s) named in this e-mail message. This communication is intended to be and to remain confidential and may be subject to applicable attorney/client and/or work product privileges. If you are not the intended recipient of this e-mail message, or if this e-mail message has been addressed to you in error, please immediately alert the sender by reply e-mail and then delete this e-mail message and its attachments. Do not deliver, distribute or copy this e-mail message and/or any attachments and if you are not the intended recipient, do not disclose the contents or take any action in reliance upon the information contained in this communication or any attachments.
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Tom McKeel
Sent: Thursday, April 19, 2012 9:16 AM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] [RPPTL-constructionlaw QUESTION BUT LOOKING FOR A VERY SPECIFIC CASE ONLY
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@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of mromm@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@rommlaw.com mailto:mromm@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@lwwhiteattorney.com <mailto:lan@lwwhiteattorney.com> >
Date: Wed, April 18, 2012 1:06 pm
To: "'RPPTL constructionlaw'" <constructionlaw@lists.flabarrpptl.org <mailto:constructionlaw@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@lists.flabarrpptl.org <mailto:constructionlaw-bounces@lists.flabarrpptl.org> [mailto:constructionlaw-bounces@lists.flabarrpptl.org <mailto:constructionlaw-bounces@lists.flabarrpptl.org> ] On Behalf Of Fitzsimmons, Bob
Sent: Wednesday, April 18, 2012 11:09 AM
To: RPPTL constructionlaw; jim@mccraelaw.com <mailto:jim@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@lists.flabarrpptl.org <mailto:constructionlaw@lists.flabarrpptl.org>
http://mailman.fsr.com/mailman/listinfo/constructionlaw <http://mailman.fsr.com/mailman/listinfo/constructionlaw>
I understand but also see 489.105(3) "Contractor" means the person who is qualified for, and is only responsible for, the project contracted for and means, except as exempted in this part, the person who, for compensation, undertakes to, submits a bid to, or does himself or herself or by others construct, repair, alter, remodel, add to, demolish, subtract from, or improve any building or structure, including related improvements to real estate, for others or for resale to others . . .
Bottom line: I think the law is in favor of the owner vs. the unlicensed (or under-licensed) contractor but sometime we have to get creative to try to help our clients who have created a mess for themselves.
Andrea M. Fair-Purcell
Board Certified Construction Attorney
▬▬▬▬▬▬▬▬▬▬▬▬
FAIR•LAW•PLLC
▬▬▬▬▬▬▬▬▬▬▬▬
13046 Racetrack Road #236
Tampa, FL 33626
(813) 412-1077 phone
(877) 879-4990 fax
www.fairconstructionliens.comhttp://www.fairconstructionliens.com
[cid:image001.jpg@01CD1E1C.D6A27120]
The contents of this e-mail message and any attachments are intended solely for the addressee(s) named in this e-mail message. This communication is intended to be and to remain confidential and may be subject to applicable attorney/client and/or work product privileges. If you are not the intended recipient of this e-mail message, or if this e-mail message has been addressed to you in error, please immediately alert the sender by reply e-mail and then delete this e-mail message and its attachments. Do not deliver, distribute or copy this e-mail message and/or any attachments and if you are not the intended recipient, do not disclose the contents or take any action in reliance upon the information contained in this communication or any attachments.
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Reese J. Henderson, Jr.
Sent: Thursday, April 19, 2012 10:51 AM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] [RPPTL-constructionlaw QUESTIONBUT LOOKING FOR A VERY SPECIFIC CASE ONLY
I have to disagree with your last point, Andrea. Chapter 489 is quite clear that the mere offering of construction services is contracting, regardless of whether you end up charging for it. See sec. 489.105(6), F.S. (stating "The attempted sale of contracting services and the negotiation or bid for a contract on these services also constitutes contracting."). So the mere fact a contractor later elects not to charge for services originally bid and sold with the intent to charge for them (but which are outside the contractor's license) is probably not going to be a winning argument. The intent is still there to evade the statute, which I don't the courts would condone.
Reese
Reese J. Henderson, Jr.
Shareholder
GrayRobinson, P.A.
50 North Laura Street, Suite 1100
Jacksonville, Florida 32202
Main: 904-598-9929 | Fax: 904-598-9109
Email: Reese.Henderson@gray-robinson.commailto:Reese.Henderson@gray-robinson.com
GRAY | ROBINSONhttp://www.gray-robinson.com/
ATTORNEYS AT LAW
This e-mail is intended only for the individual(s) or entity(s) named within the message. This e-mail might contain legally privileged and confidential information. If you properly received this e-mail as a client or retained expert, please hold it in confidence to protect the attorney-client or work product privileges. Should the intended recipient forward or disclose this message to another person or party, that action could constitute a waiver of the attorney-client privilege. If the reader of this message is not the intended recipient, or the agent responsible to deliver it to the intended recipient, you are hereby notified that any review, dissemination, distribution or copying of this communication is prohibited by the sender and to do so might constitute a violation of the Electronic Communications Privacy Act, 18 U.S.C. section 2510-2521. If this communication was received in error we apologize for the intrusion. Please notify us by reply e-mail and delete the original message without reading same. Nothing in this e-mail message shall, in and of itself, create an attorney-client relationship with the sender.
Disclaimer under Circular 230: Any statements regarding tax matters made herein, including any attachments, are not formal tax opinions by this firm, cannot be relied upon or used by any person to avoid tax penalties, and are not intended to be used or referred to in any marketing or promotional materials.
Please be advised that this law firm may be acting as a debt collector and is attempting to collect a debt and any information provided will be used for that purpose.
From: constructionlaw-bounces@lists.flabarrpptl.orgmailto:constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Andrea Fair
Sent: Thursday, April 19, 2012 9:49 AM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] [RPPTL-constructionlaw QUESTIONBUT LOOKING FOR A VERY SPECIFIC CASE ONLY
I sued a contractor who had a carpentry license but who performed work beyond the scope of his license. Among other things, I sued for rescission and replevin and won on summary judgment. I think, at this point, even if the owner is an active participant in the illegal activity, it’s the contractor who loses. It’s unfortunate that the penalties are not somehow equally shared when the owner knowingly hires an unlicensed contractor but I believe that is the state of the law.
I also represented a contractor who performed work beyond the scope of his license but we partially released his lien for the amounts due for the work not covered by his license. The judge still ruled against us but, if my client had never charged for that work (as opposed to later deciding to concede on that money), I think the argument would have been stronger. I can’t remember the statute off the top of my head but there is one that essentially defines contracting and one element is that you are actually charging for the work. If you’re doing it for free, then it’s not contracting. Obviously, that doesn’t help if the contractor has no license at all.
Andrea M. Fair-Purcell
Board Certified Construction Attorney
▬▬▬▬▬▬▬▬▬▬▬▬
FAIR•LAW•PLLC
▬▬▬▬▬▬▬▬▬▬▬▬
13046 Racetrack Road #236
Tampa, FL 33626
(813) 412-1077 phone
(877) 879-4990 fax
www.fairconstructionliens.comhttp://www.fairconstructionliens.com
[cid:image001.jpg@01CD1E1C.D6A27120]
The contents of this e-mail message and any attachments are intended solely for the addressee(s) named in this e-mail message. This communication is intended to be and to remain confidential and may be subject to applicable attorney/client and/or work product privileges. If you are not the intended recipient of this e-mail message, or if this e-mail message has been addressed to you in error, please immediately alert the sender by reply e-mail and then delete this e-mail message and its attachments. Do not deliver, distribute or copy this e-mail message and/or any attachments and if you are not the intended recipient, do not disclose the contents or take any action in reliance upon the information contained in this communication or any attachments.
From: constructionlaw-bounces@lists.flabarrpptl.orgmailto:constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Tom McKeel
Sent: Thursday, April 19, 2012 9:16 AM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] [RPPTL-constructionlaw QUESTION BUT LOOKING FOR A VERY SPECIFIC CASE ONLY
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@lists.flabarrpptl.orgmailto:constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of mromm@rommlaw.commailto:mromm@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@rommlaw.commailto:mromm@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.
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-------- Original Message --------
Subject: Re: [RPPTL-constructionlaw] Construction Defect jury
instructions
From: <lan@lwwhiteattorney.commailto:lan@lwwhiteattorney.com>
Date: Wed, April 18, 2012 1:06 pm
To: "'RPPTL constructionlaw'" <constructionlaw@lists.flabarrpptl.orgmailto:constructionlaw@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@lists.flabarrpptl.orgmailto:constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Fitzsimmons, Bob
Sent: Wednesday, April 18, 2012 11:09 AM
To: RPPTL constructionlaw; jim@mccraelaw.commailto:jim@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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