ROBERT P. FLEMING AND DONNA L. FLEMING, HIS WIFE, APPELLANTS/CROSS-APPELLEES,
v.
URDL'S WATERFALL CREATIONS, INC., A FLORIDA CORPORATION, APPELLEE/CROSS-APPELLANT
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Fleming homeowners appealed a judgment in a mechanic's lien foreclosure case where a contractor failed to properly construct a waterfall. The court reversed the damages award and attorney fees, holding that the trial court incorrectly applied an equitable solution rather than the proper legal doctrine for substantial performance contracts.
The court held that where a contractor has substantially performed, it is entitled to the full contract price minus only the damages caused by breaches. The trial court erred by awarding an arbitrary amount ($542.50 matching the extras) rather than applying the proper legal doctrine. The case was reversed and remanded because the determination of prevailing party status for attorney fees purposes depends on proof of completion costs versus the combined contract balance and extras.
[1] A contractor who has substantially performed a contract is entitled to the full contract price, less damages suffered by the owner due to the contractor's breaches.
[2] The cost of completion or correction of defective work is a proper measure of damages for an owner when a contractor has not substantially performed.
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Join FLexlaw to unlock all legal intelligence“Where a building contractor has substantially performed a contract between the parties, the contractor is entitled to be paid the full contract price diminished only by damages which the owner has suffered as the result of such breaches of the contract as may be established by competent evidence.”
Establishes the legal standard for payment when a contractor substantially performs but commits breaches.
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Join FLexlaw to unlock all legal intelligenceUrdl's Waterfall Creations, Inc. contracted to build a waterfall for $14,800, with extra charges for additions or changes. Although the waterfall was …
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GARRETT, Judge.
This is an appeal and cross appeal from a judgment entered after a bench trial on claims arising from appellee’s construction of a waterfall on appellants’ property.
The total contract price was $14,800, any additions or changes were to be extra. Despite appellee's repeated efforts, the otherwise completed waterfall did not work properly. Appellants paid another contractor to correct the problem.
Appellee filed a claim of lien for the contract balance ($4,800) and the extras ($542.50). Appellee then brought suit to foreclose on its mechanic’s lien. The appellants counterclaimed. The trial judge gave appellee a $542.50 judgment. At a post trial hearing, appellee was awarded, as the prevailing party, attorney fees of $10,500.
We reverse as to damages and attorney fees.
Where a building contractor has substantially performed a contract between the parties, the contractor is entitled to be paid the full contract price diminished only by damages which the owner has suffered as the result of such breaches of the contract as may be established by competent evidence. T.A.S. Heavy Equipment, Inc. v. Delint, Inc., 532 So. 2d 23 (Fla. 4th DCA 1988); Oven Development Corporation v. Molisky, 278 So. 2d 299 (Fla. 1st DCA 1973). At trial, appellants proved the cost of completion to be at least $825, but they may have additional proof. The appellee claimed such cost was $300 to $400. Neither the low figure of $300 nor the high figure of $825 when subtracted from the contract balance and extras comes close to the judgment amount of $542.50. It is obvious the trial court ignored the legal doctrine concerning the contract balance and completion costs and applied an equitable solution by awarding the extras figure.
The prevailing party in a mechanics lien foreclosure suit is entitled to an award of attorney fees. § 713.29, Fla.Stat. (1983). Upon remand, if the appellants can prove the cost of completion exceeds the combined total of the contract balance and extras, they may be the prevailing party. However, if the cost of completion does not exceed the combined contract balance and extras, the appellee will once again be the prevailing party. Our ruling makes all determinations concerning who is the prevailing party premature. See Van Dusen v. Single Ply International, Inc. of Florida, 545 So. 2d 960 (Fla. 5th DCA 1989).
The parties are advised a prevailing party is also entitled to prejudgment interest. Ferrell v. Ashmore, 507 So. 2d 691 (Fla. 1st DCA 1987).
REVERSED AND REMANDED FOR A NEW TRIAL ON DAMAGES AND FOR FURTHER PROCEEDINGS CONSISTENT HEREWITH.
HERSEY, C.J., and POLEN, J., concur.
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CASA Linda Tile & Marble Installers, Inc. v. Highlands Place 1981, Ltd., 642 So. 2d 766 (Fla. 4th DCA 1994)…d otherwise complied with the mechanic’s lien statute, it is entitled to an award on its mechanic’s lien claim for the contract price less all damages caused by its failure to render full performance. See Fleming v. Urdl’s Waterfall Creations, Inc., 549 So. 2d 1057 (Fla. 4th DCA 1989); Viking Communities Corp. v. Peeler Constr. Co., 367 So. 2d 737 (Fla. 4th DCA 1979); Ocean Ridge Dev. Corp. v. Quality Plastering, Inc., 247 So. 2d 72 (Fla. 4th DCA 1971). Substantial performance is defined in Ocean Ridge as: th…
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DeBIASI v. S & S Builders, Inc., 593 So. 2d 314 (Fla. 4th DCA 1992)…enses, which is insufficient as a matter of law. The amount to be offset in a case involving the foreclosure of a mechanic’s lien must be shown with a reasonable degree of certainty by competent evidence. Fleming v. Urdl’s Waterfall Creations, Inc., 549 So. 2d 1057 (Fla. 4th DCA 1989); Young v. Johnston, 475 So. 2d 1309 (Fla. 1st DCA 1985); R.K. Cooper Builders v. Free-Lock Ceilings, 219 So. 2d 87 (Fla. 3d DCA 1969). The trial court ordered an offset where the appellant was able to substantiate his claim of $7…
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Bellco Contracting, Inc. v. Vickers OF Cent. Fla., Inc., 593 So. 2d 626 (Fla. 3d DCA 1992)…PER CURIAM. Affirmed. Golub v. De Linardy Flooring Co., 44 So. 2d 75 (Fla.1950); Fleming v. Urdl’s Waterfall Creations, Inc., 549 So. 2d 1057 (Fla. 4th DCA 1989); Oven Development Corporation v. Molisky, 278 So. 2d 299 (Fla. 1st DCA 1973).…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Oven Dev. Corp. v. Molisky, 278 So. 2d 299 (Fla. 1st DCA 1973)
- Ferrell v. Ashmore, 507 So. 2d 691 (Fla. 1st DCA 1987)
- T.A.S. Heavy Equip., Inc. v. Delint, Inc., 532 So. 2d 23 (Fla. 4th DCA 1988)
- van Dusen v. Single PLY Int'l, 545 So. 2d 960 (Fla. 5th DCA 1989)