ROBERT F. WILSON, INC. AND WOODCRAFT INDUSTRIES, INC., BOTH D/B/A WILSON/WOODCRAFT, AND RELIANCE INSURANCE COMPANY, APPELLANTS,
v.
POST-TENSIONED STRUCTURES, INC., APPELLEE
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A general contractor appeals a judgment requiring it to pay a subcontractor for work performed on a construction project. The court reversed, holding that the subcontract's plain language made payment by the owner to the general contractor a condition precedent to payment by the general contractor to the subcontractor, and since the owner had not yet paid, the subcontractor's action was premature.
The court held that Conditions 20 and 34 of the subcontract plainly and unambiguously established that payment by the owner to the general contractor was a condition precedent to the general contractor's payment obligation to the subcontractor, not merely a time specification. Because the owner had not paid the general contractor, the general contractor had no obligation to pay the subcontractor.
[1] A construction subcontract may validly make payment by the owner to the general contractor a condition precedent to the general contractor's obligation to pay the subcont…
[2] Contract provisions stating that final payment is contingent upon payment from the owner and shall be made within a specified time after such payment, provided certain co…
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Join FLexlaw to unlock all legal intelligence“final payment is contingent upon payment to the Contractor and shall be made within thirty (30) days after said payment from the Owner, provided the Subcontractor has previously furnished complete releases of lien and evidence of paid material bills”
Condition 34 of the subcontract establishing payment by owner as condition precedent to subcontractor payment
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Join FLexlaw to unlock all legal intelligenceWilson/Woodcraft, a general contractor, entered into a subcontract with Post-Tensioned Structures, Inc. for construction work. The subcontract contain…
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PER CURIAM.
This is an appeal by the defendant general contractor from an adverse final judgment entered against it after a non-jury trial in a breach of contract action brought below by the plaintiff subcontractor. We reverse based on a holding that the following provisions of the construction subcontract between the parties:
“When all work has been finally accepted by the Architect and WIL SON/WOODCRAFT, final payment is contingent upon payment to the Contractor and shall be made within thirty (30) days after said payment from the Owner, provided the Subcontractor has previously furnished complete releases of lien and evidence of paid material bills”
Condition 34 of the subcontract (emphasis added), and
“No Change Orders will be issued for additional work of any kind unless so approved by the Architect and Owner prior to its issuance. In the event a controversy occurs between the Owner and the General Contractor concerning the Contract with the Owner or these Change Order(s), then it is expressly agreed that no compensation for these items shall be due the Subcontractor from the Contractor until payment for them is received by the Contractor, regardless of the fact that payment is delayed due to the Contractor negotiating with the Owner, arbitration, administrative actions, litigation, appeals or other similar activities ”
Condition 20 of the subcontract (emphasis added), plainly and unambiguously make payment by the owner to the general contractor a condition precedent to payment by the contractor to the subcontractor herein, rather than merely fix a time for payment to the subcontractor. It is settled that the parties, as here, may so provide in their contract and thus shift the risk of the aforesaid payment failure by the owner from the general contractor to the subcontractor. Peacock Constr. Co. v. Modern Air Conditioning, Inc., 353 So. 2d 840, 842 (Fla.1977).
Because it is undisputed that the owner has not yet made payment under its contract with the general contractor, and that these two parties are currently engaged in litigation concerning this non-payment, it was error for the trial court to require the general contractor to pay under its contract with the subcontractor herein. The final judgment under review is, accordingly, reversed, and the cause is remanded to the trial court with directions to dismiss the instant action as being prematurely filed.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Pace Constr. Corp. v. OBS Co., Inc., 531 So. 2d 737 (Fla. 2d DCA 1988)…case may be. Thus, in Dyser payment by the owner to the contractor was held to be a condition precedent to the contractor’s obligation to tender final payment to the subcontractor. See also, Robert F Wilson, Inc. v. Post-Tensioned Structures, Inc., 522 So. 2d 79 (Fla. 3d DCA 1988) (subcontract provision stating “final payment is contingent upon payment to the contractor” unambiguously established condition precedent). Sub judice, paragraph 6.3 of the subcontract clearly states that payment from the owner s…
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DEC Elec., Inc. v. Raphael Constr. Corp., 538 So. 2d 963 (Fla. 4th DCA 1989)…s and those that do not. In most of the cases which have found that the language of the payment provisions created condition precedents, the [*965] term “condition” or “contingency” was explicitly used. See Wilson, Inc. v. Post-Tensioned Structures, 522 So. 2d 79 (Fla. 3d DCA 1988) (“final payment is contingent upon payment to the contractor”); Dyser Plumbing Co. v. Ross Plumbing and Heating Inc., 515 So. 2d 250 (Fla. 2d DCA 1987) (“... and as a condition precedent receipt of final payment of Dyser Plumbing…
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Bentley Constr. Dev. & Eng'g Inc. v. ALL Phase Elec. & Maint., Inc., 562 So. 2d 800 (Fla. 2d DCA 1990)…actor fully understands that in event of non payment by the owner to the General Contractor, the subcontractor has legal recourse against the owner ... ”; provision found to be unambiguous); Robert F. Wilson, Inc. v. Post-Tensioned Structures, Inc., 522 So. 2d 79 (Fla. 3d DCA 1988) (“final payment is contingent upon payment to the contractor”; held unambiguous); Dyser Plumbing Co. v. Ross Plumbing & Heating, Inc., 515 So. 2d 250 (Fla. 2d DCA 1987) (“[f]inal payment ... shall be made within thirty days of com…1 / 2
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Peacock Constr. Co., Inc. v. Modern AIR Conditioning, Inc., 353 So. 2d 840 (Fla. 1977)