WILLIAM PERSINGER AND PHYLLIS PERSINGER, APPELLANTS,
v.
ESTATE OF PHILLIP T. TIBBETTS, DECEASED, APPELLEE
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In a building contract dispute involving construction defects and cost calculations, the appellants challenge a trial court judgment requiring payment to the estate of the builder. The court affirms the trial judge's factual findings on damages and cost-plus contract calculations, but reverses and remands regarding the prejudgment interest calculation date.
The court affirms the trial judge's determination of damages and the amount owed by appellants, as the factual findings regarding the cost-plus contract calculations and defects cannot be second-guessed on appeal. However, the court reverses the prejudgment interest calculation because the trial judge used an incorrect date (January 1, 1995 instead of January 10, 1996) and remands for recalculation.
[1] An appellate court cannot substitute its view of the facts for that of the trier-of-fact when the testimony is contradictory, confusing, or indeterminate.
[2] A cost-plus contract requires the calculation of all project costs after completion to determine the builder's compensation.
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Join FLexlaw to unlock all legal intelligence“Given that the testimony was directly contradietive in many instances, confusing in other instances, and often indeterminate, it is impossible for this court to say the trial judge reached the wrong decision as to the damages due appellee or set-offs due appellants.”
Establishes the appellate standard of review for factual findings in cases with contradictory evidence—the trial judge's findings cannot be overturned merely because testimony conflicts.
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Join FLexlaw to unlock all legal intelligenceAppellants Persinger and their spouse contracted with appellee Tibbetts for house construction on their property. The contract was a cost-plus arrange…
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DAUKSCH, J.
Appellants seek review of a judgment in a building contract dispute. The parties entered into a written contract for the construction of a house on appellants’ property. During the course of the project many oral modifications were made, some very significant. While appellee produced many invoices from subcontractors which appellee asserts were paid, there is no small amount of confusion exactly how much the total construction price actually amounted to. This is because appellee made barters and partial barters with some subs and paid others in cash and otherwise caused great confusion in the process. The amount paid by appellee for the project is critical to the amount owed by appellant because this was a “cost-plus” contract. That is, all of the costs were totaled after completion of the project and the builder got a percentage of that figure as his compensation. When the job was done a certificate of occupancy was issued by the county and appellants moved in. Thereafter, they refused to make full payment to appellee because various defects were discovered and they contested the final cost figures.
At trial testimony was taken, pictures and videos were shown and invoices and documents were submitted. In the end the trial judge made his decision arid appellants contest that decision. Given that the testimony was directly contradietive in many instances, confusing in other instances, and often indeterminate, it is impossible for this court to say the trial judge reached the wrong decision as to the damages due appellee or set-offs due appellants. If we were to determine otherwise it would be necessary for us to either supplant our view of the facts with those of the trier-of-the-facts, which appellate courts cannot do, or allow appellant to have a second trial — a “second bite at the apple” which is equally improper under the law.
Thus we must affirm the judgment in chief.
However, because the trial judge used the wrong date in calculating the prejudgment interest, conceded by appellee, we must revise that portion of the judgment and remand for a calculation of the interest from January 10, 1996 rather than January 1,1995.
AFFIRMED in part; REVERSED in part; REMANDED.
W. SHARP and GOSHORN, JJ., concur.
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Levy v. Eliahu Ben-Shmuel, 255 So. 3d 493 (Fla. 3d DCA 2018)…or proffered-as distinguished from a reversal necessitated by a trial court error-ordinarily does not allow the party [*496] a new trial or hearing on remand in order to remedy the shortcoming and try again. (citing Persinger v. Estate of Tibbetts, 727 So. 2d 350, 351 (Fla. 5th DCA 1999) ; Emerald Pointe Prop. Owners' Ass'n v. Commercial Constr. Indus. Inc., 978 So. 2d 873, 879-80 (Fla. 4th DCA 2008) ). See also Martinez v. Reemployment Assistance Appeals Com'n, 118 So. 3d 878 (Fla. 3d DCA 2013). The Fourth…
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Sharrard v. Ligon, 892 So. 2d 1092 (Fla. 2d DCA 2004)…ntered into a cost-plus contract, the amount paid by the Contractor for goods and services for the project was critical to determining the amounts owed by the Owners, both as the job progressed and at completion. See Persinger v. Estate of Tibbetts, 727 So. 2d 350 (Fla. 5th DCA 1999). Therefore, accurate record keeping and accounting for costs by the Contractor was essential to the proper administration of the parties’ [*1095] cost-plus contract. Unfortunately, the Contractor failed to generate and maintain a…
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J.S.L. Constr. Co. v. Eliyahu Levy and Ramona Levy, 994 So. 2d 394 (Fla. 3d DCA 2008)…ntered into a cost-plus contract, the amount paid by the Contractor for goods and services for the project was critical to determining the amounts owed by the Owners, both as the job progressed and at completion. See Persinger v. Estate of Tibbetts, 727 So. 2d 350 (Fla. 5th DCA 1999). Therefore, accurate record keeping and accounting for costs by the Contractor was essential to the proper administration of the parties’ cost-plus contract. Unfortunately, the Contractor failed to generate and maintain accurate…
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