HALL CONSTRUCTION CO., INC., APPELLANT,
v.
CHARLES H. BEYNON D/B/A BEYNON'S FLOORS AND WALLS, APPELLEE

Fla. 5th DCA | 1987-06-04
No. 86-1268
COBB, J., and LOCKETT, J.T., Associate Judge, concur.
507 So. 2d 1225 Florida District Court of Appeal, Fifth District (1987) Caution
Cited by 4 cases

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Synopsis

Hall Construction appeals a judgment requiring its subcontractor to pay $4,500 in liquidated damages for construction delays. The court affirms, holding that the purchase order's liquidated damages clause is clear and unambiguous, precluding recovery of additional actual damages under the parol evidence rule.


Holding

The purchase order's liquidated damages provision clearly limits the subcontractor's liability to the liquidated damages amount specified in that clause. The parol evidence rule precludes recovery of additional actual damages, as the parties' written agreement contained a complete and unambiguous statement of the remedy for delay.


Headnotes

[1] A contract provision specifying liquidated damages for delay precludes recovery of actual damages for the same delay when the contract is presumed to contain all agreed-u…

[2] The parol evidence rule prevents the introduction of evidence to contradict or vary the terms of a written contract that is presumed to be complete.

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Key Quotes

“Liquidated damages is a fictitious contractual amount which the parties agree will be paid for breach if damages are not readily ascertainable at the time the contract is drawn.”

Establishes the nature and purpose of liquidated damages clauses in contract law.

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Facts & Procedural History

Hall Construction hired subcontractor Beynon to perform flooring work. Beynon delayed performance, contributing to a 66-day construction delay. As a r…

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Opinion of the Court
DAUKSCH, Judge.

DAUKSCH, Judge.

This is an appeal from a judgment in a contract case. The judgment requires a subcontractor, appellee, to pay approximately $4,500 to the general contractor, appellant, who claims that it is entitled to more. This suit for damages was based upon a “purchase order” which contained the following provision:

4. Supplier hereby agrees that TIME IS OF THE ESSENCE and that Hall Construction Co., Inc. relies on the timely performance by the supplier. In the event timely performance is impossible for reasons beyond the control of the supplier, he shall immediately obtain a written extension of time duly signed by the Architect. The parties hereto agree that a supplier who delays performance beyond the time agreed upon in this Purchase Order shall have caused Hall Construction Co., Inc. liquidated damages in the amount required of Hall Construction Co., Inc. by their contract per day for each day such delay continues which sum the supplier hereby agrees to pay [emphasis supplied].

Because of delays in construction, appellant was required to pay the owner of the property $20,000 in liquidated damages. This $20,000 figure was actually a reduced settlement amount because the general contract called for liquidated damages between the owner and the general contractor in the amount of $1,000 per day and the delay was over sixty days.

Because appellee was one of the several subcontractors responsible for the delay, the contractor worked out a plan for apportionment between the subcontractors. Ap-pellee refused to pay his portion. On appeal, appellant claims that it is entitled to all damages suffered as a result of the sixty-six day delay. Such damages are said to include not only the $20,000 assessed by the owner but also losses incurred by appellant for labor and other overhead expenses expended as a result of the delay.

The above quoted paragraph is the controlling contractual provision. While this provision is not an example of good and precise legal draftsmanship, it is capable of interpretation, is not ambiguous, and even if it was ambiguous would be construed against appellant, the supplier of the contract. This paragraph specifically states that “a supplier who delays performance beyond the time agreed upon in this Purchase Order shall have caused ” Hall damages in a specified liquidated amount.

Liquidated damages is a fictitious contractual amount which the parties agree will be paid for breach if damages are not readily ascertainable at the time the contract is drawn. McNorton v. Pan American Bank of Orlando, 387 So. 2d 393 (Fla. 5th DCA 1980), rev. den., 392 So. 2d 1377 (Fla.1981). Although appellant maintains that it is entitled to liquidated damages as well as actual damages suffered as a result of the delay, we find that the parol evidence rule precludes such a finding. As Professor Kuenzel of the Stetson University College of Law, and most likely all other contracts professors teach “... If you write it at all, then write it all because if you write it at all, it will be presumed you wrote it all.”

Had the general contractor been aware of the parol evidence rule, a different contract may have been provided. For example, a contract with one paragraph for in demnification of all liquidated, or other, damages paid by the general to the owner and another paragraph for payment of other actual, consequential damages suffered by the general as a result of the delay caused by the sub. We affirm the judgment.

AFFIRMED.

COBB, J., and LOCKETT, J.T., Associate Judge, concur.


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Cited By

  • Design Time, Inc. v. Monco OF Orlando, Inc., 518 So. 2d 454 (Fla. 5th DCA 1988)
    …” Hatcher v. Panama City Nursing Center, Inc., 461 So. 2d 288 (Fla. 1st DCA 1985). In addition, where the contract provides for liquidated damages of a deposit, the court may not award damages in excess of that sum. Hall Constr. Co., Inc. v. Beynon, 507 So. 2d 1225 (Fla. 5th DCA 1987); Brusko v. Circle of Seminole, Inc., 436 So. 2d 399 (Fla. 2d DCA 1983). Here, there is nothing to indicate that the agreement which was prepared and required by Moneo was not “mutual, unequivocal and reasonable.” Moneo elected t…
  • State v. Calusa Trace Dev., 571 So. 2d 543 (Fla. 2d DCA 1990)
    …. Under the so-called “deemer” provision of section 120.-60(2), Florida Statutes (1989), if there is no approval or denial of the application within the ninety-day period, the application is deemed approved. Adec, Inc. v. Dep’t of Natural Resources, 507 So. 2d 1225 (Fla. 5th DCA 1987). That subsection, however, does not expressly demand or even mention that the approval or denial of the application must be in writing to avoid the operation of the “deemer” provision. § 120.60(2), Fla.Stat. (1989). [*546] Noneth…
  • Fla. Acad. OF Cosm. Surgery, Inc. v. State, 771 So. 2d 602 (Fla. 1st DCA 2000)
    …because of respondent’s failure to comply with the time requirements of section 120.60(1). See State, Department of Transportation v. Calusa Trace Development, Corp., 571 So. 2d 543 (Fla. 2d DCA 1990); ADEC, Inc. v. Department of Natural Resources, 507 So. 2d 1225 (Fla. 5th DCA 1987); Gulf Coast Home Health Services of Florida, Inc. v. Pingree, 476 So. 2d 760 (Fla. 1st DCA 1985). PETITION GRANTED. ERVIN, LAWRENCE and PADOVANO, JJ., concur.…

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