ZUPNIK HAVERLAND, L.L.C., AND PLATTE RIVER INSURANCE COMPANY, APPELLANTS,
v.
CURRENT BUILDERS OF FLORIDA, INC., AND POWER DESIGN, INC., APPELLEES

Fla. 4th DCA | 2009-03-11
Nos. 4D08-1169, 4D08-3257, 4D08-3432
STEVENSON and DAMOORGIAN, JJ., concur.
7 So. 3d 1132 Florida District Court of Appeal, Fourth District (2009) Positive Treatment
Cited by 27 cases

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Holding

The court held that the trial court did not abuse its discretion in excluding expert testimony and did not err in enforcing the construction lien, as it was timely filed and not willfully exaggerated.


Headnotes

[1] A trial court has broad discretion in determining the range of subjects on which an expert witness may testify.

[2] A trial court should grant a motion for a directed verdict only when the evidence shows that the jury could not reasonably differ as to the existence of a material fact.

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Facts & Procedural History

A developer and contractor entered a settlement agreement for construction work. The developer failed to make payments as required by the agreement. T…

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Opinion of the Court
PHILLIPS, CAROL-LISA, Associate Judge.

PHILLIPS, CAROL-LISA, Associate Judge.

Appellants, Zupnik Haverland, LLC and Platte River Insurance Company, appeal the final judgment in favor of Current Builders of Florida, Inc., in which the trial court enforced a foreclosure of a transfer bond on a construction lien. Appellants also appeal the final judgment in favor of the subcontractor, Power Design, Inc., in accordance with a directed verdict. We affirm on all issues, only two of which warrant discussion.

A developer (Zupnik) and contractor (Current) entered into a contract for the construction of an apartment complex. A dispute arose regarding the performance of the contract. The parties entered into a settlement agreement resolving the dispute and agreed to appoint a third party to resolve “punch list” issues, including reviewing the work and determining whether it was completed and the value of the incomplete work. The settlement agreement required Zupnik to make two payments to Current: (1) $480,000.00, payable to Current within fifteen days of mutual acceptance of a certificate of payment, and (2) $60,000.00, to be placed in escrow in the same time frame but not be disbursed until Current completed the work contemplated in the agreement. The third party could hold back amounts from the escrow for the value of work deemed incomplete. Current’s work included certain parking lot work, which was not part of the construction contract but requested by Zupnik as part of the settlement agreement.

Current submitted to Zupnik the certificate of payment, which Zupnik forwarded to the project architect with instructions to approve it, which he did. Zupnik never paid Current the $480,000.00, nor placed the $60,000.00 in escrow, as required by the settlement agreement.

Current completed the parking lot work and recorded its amended claim of lien for the entire $540,000 owed under the settlement agreement. Zupnik disputed Current’s claim that it had completed all of the *1134work required by the settlement agreement, so the parties appointed Richard Slider, P.E., as the third party to resolve the punch list issues. In his final report, Slider stated that Current had not completed only a handful of items he valued at $13,891.

Current sued Zupnik for breach of the settlement agreement and against both Zupnik and its surety to foreclose the lien against the transfer bond. Zupnik counterclaimed for breach of the agreement and fraudulent lien, asserting it was untimely recorded and willfully exaggerated.

Appellants contend that the trial court erred in excluding from evidence the expert testimony regarding latent defects and building code violations resulting from the contractor’s work on the stairs. The trial court’s decisions regarding exclusion of evidence are reviewed for abuse of discretion. Nationwide Mut Fire Ins. Co. v. Bruscarino, 982 So.2d 758, 754 (Fla. 4th DCA 2008). Further, a trial court has broad discretion in determining the range of subjects on which an expert witness will be allowed to testify. State v. Townsend, 635 So.2d 949, 958 (Fla.1994). We hold that the trial court did not abuse its discretion by excluding the expert’s testimony.

Appellants also contend that the trial court erred in enforcing the contractor’s construction lien in a separate non-jury proceeding because it was untimely filed and willfully exaggerated. The ruling on a motion for directed verdict is reviewed de novo. Flagstar Cos., Inc. v. Cole-Ehlinger, 909 So.2d 320, 321 (Fla. 4th DCA 2005). A trial court should grant a motion for directed verdict “only when the evidence shows that the jury could not reasonably differ as to the existence of a material fact.” Union Carbide Corp. v. Kavanaugh, 879 So.2d 42, 44 (Fla. 4th DCA 2004).

The lower court’s ultimate factual determinations during a non-jury trial may not be disturbed on appeal unless shown to be unsupported by competent and substantial evidence or to constitute an abuse of discretion. Berlin v. Pecora, 968 So.2d 47, 50 (Fla. 4th DCA 2007), rev. denied, 982 So.2d 684 (Fla.2008).

As for the developer’s argument that the lien was untimely filed,1 the record reflects otherwise. The “punch list” was a blending of work to be performed pursuant to the contract and additional work required under the settlement agreement. While some of the work may not have tolled the time to record a lien, the parking lot work was additional work not in the scope of the original contract. This court has stated that “there are no steadfast rules to apply to determine if work constitutes a ‘final furnishing’; rather, the lower courts are to apply the Aronson test.” Michnal v. Palm Coast Dev., Inc., 842 So.2d 927, 933 (Fla. 4th DCA 2003), rev. denied, 882 So.2d 385 (Fla.2004) (citing Aronson v. Keating, 386 So.2d 822 (Fla. 4th DCA 1980)). The parking lot work fulfilled the elements of the Aronson test in that it was done (1) in good faith, (2) within a reasonable time, (3) in pursuance of the terms of the contract, and (4) was necessary to do a “finished job.” See id.

The developer also contends that the construction lien was fraudulent, because the contractor willfully exaggerated the amount of the lien. “[A] good faith dispute as to the amount due does not constitute a willful exaggeration that oper*1135ates to defeat an otherwise valid lien.” § 713.31(2)(b), Fla. Stat. It is within the trial court’s discretion to determine the intent and good or bad faith of the lienor, and thus, it would be inappropriate for this court to substitute its judgment for that of the lower court. Castiello v. Sweetwater Homes of Citrus, Inc., 843 So.2d 1019, 1021 (Fla. 5th DCA 2003). Further, a disagreement regarding the amount of money owed does not convert a good faith dispute into a fraudulent lien. Id. at 1020-21. Here, the undisputed testimony reflects that the contractor believed in good faith that, at the time it recorded its lien, it had completed all of the work required under the settlement agreement and, therefore, was entitled to receive the full amount listed in the lien.

We affirm as to all other issues raised without further discussion.

Affirmed.

STEVENSON and DAMOORGIAN, JJ., concur.


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Citator

Cited By (19 total)

  • Craigside, LLC v. GDC View, LLC, 74 So. 3d 1087 (Fla. 1st DCA 2011)
    …ct to the legal effect of the contract, we are bound by the trial court’s findings of fact in a case, like the present one, where competent, substantial evidence supports the findings. See Zupnik, Haverland, L.L.C. v. Current Builders of Fla., Inc., 7 So. 3d 1132, 1134 (Fla. 4th DCA 2009) (“The lower court’s ultimate factual determinations during a non-jury trial may not be disturbed on appeal unless shown to be unsupported by competent and substantial evidence or to constitute an abuse of discretion.” (cita…
  • DK Arena, Inc. v. EB Acquisitions I, LLC, 31 So. 3d 313 (Fla. 4th DCA 2010)
    …e period. “[A] lower court’s ultimate factual determinations during a non-jury trial may not be disturbed on appeal unless shown to be unsupported by competent and substantial evidence....” Zupnik Haverland, L.L.C. v. Current Builders of Fla., Inc., 7 So. 3d 1132, 1134 (Fla. 4th DCA 2009) (citation omitted). The testimony of Markey and one of his attorneys, as well as King’s statements at the October 4 Town Council meeting, support the judge’s conclusions. There was nothing “inherently incredible” or “improb…
  • Wekiva Springs Reserve Homeowners v. Binns, 61 So. 3d 1190 (Fla. 5th DCA 2011)
    …A 2000). “[A] lower court’s ultimate factual determinations during a non-jury trial may not be disturbed on appeal unless shown to be unsupported by competent and substantial evidence.... ” Zupnik Haverland, L.L.C. v. Current Builders of Fla., Inc., 7 So. 3d 1132, 1134 (Fla. 4th DCA 2009). In the instant case, it is clear that the circuit court reweighed the evidence to reach a conclusion different from the county court. This was improper and violates clearly established law. As a consequence, we quash the c…

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