EARTH TRADES, INC. AND FIRST SEALORD SURETY, INC., APPELLANTS,
v.
T & G CORPORATION D/B/A T & G CONSTRUCTORS, ET AL., APPELLEES
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Earth Trades, an unlicensed contractor, performed defective site work and was terminated. Earth Trades appealed a trial court decision allowing T & G to enforce a breach of contract claim, arguing it should have been able to raise the unenforceability of the contract due to T & G's knowledge of its lack of license as an affirmative defense. The court affirmed, holding that under the amended statutory language, only unlicensed contractors are precluded from enforcing contracts, not the other party.
Earth Trades cannot assert that the contract was unenforceable as a defense to T & G's breach of contract claim. Under section 489.128, Florida Statutes (as amended in 2003), contracts with unlicensed contractors are unenforceable only by the unlicensed contractor; other parties retain the right to enforce such contracts.
[1] A contract entered into by an unlicensed contractor is unenforceable in law or in equity by the unlicensed contractor.
[2] A statute precluding enforcement of a contract by an unlicensed contractor does not affect the rights of other parties to enforce contract, lien, or bond remedies.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“As a matter of public policy, contracts entered into on or after October 1, 1990, by an unlicensed contractor shall be unenforceable in law or in equity by the unlicensed contractor.”
States the amended statutory language that limits who can assert unenforceability—only the unlicensed contractor itself.
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Join FLexlaw to unlock all legal intelligenceIn December 2004, Earth Trades entered into a contract with T & G Corporation to perform site work for a parking garage. Earth Trades performed the wo…
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In December 2004, Earth Trades, Inc., entered into a contract with T & G Corporation, a general contractor, to perform certain site work for a parking garage. Earth Trades performed its work in a defective manner and T & G terminated the contract in April 2005. At all relevant times, Earth Trades was not licensed to perform the work required under its contract. It was disputed whether T & G was aware of Earth Trades’ lack of a license. After a non-jury trial, T & G prevailed on its breach of contract claim against Earth Trades. On appeal, Earth Trades contends that the trial court erred in granting a partial summary judgment, precluding it from raising as an affirmative defense that the contract was unenforceable because of T & G’s alleged knowledge of Earth Trades’ lack of a license. We affirm.
Prior to June 25, 2003, section 489.128, Florida Statutes (2001), provided that contracts performed in full or in part by an unlicensed contractor, shall be “unenforceable in law or in equity.” Some Florida courts interpreted the former statute to preclude a party from enforcing a contract against an unlicensed contractor (or its bonding company), where that party had knowledge of the lack of a license. See, e.g., Kvaerner Constr., Inc. v. Am. Safety Cas. Ins. Co., 847 So.2d 534 (Fla. 5th DCA 2003) (general contractor cannot recover from subcontractor’s surety for breach of surety’s obligations on a performance bond following County’s stopping of work on construction project due to subcontractor not being licensed, since some license was required to perform work, general contractor knew that subcontractor had no license, and general contractor allowed subcontractor to work on project without license); Castro v. Sangles, 637 So.2d 989, 991 (Fla. 3d DCA 1994) (“homeowner” precluded from enforcing agreement against unlicensed contractor where homeowner, having knowledge of contractor’s lack of license, participated in wrongdoing by improperly securing building permit as “owner-builder”).
However, effective June 25, 2003, the statute was amended to provide that a contract with an unlicensed contractor was unenforceable only by the unlicensed contractor.
(1) As a matter of public policy, contracts entered into on or after October 1, 1990, by an unlicensed contractor shall be unenforceable in law or in equity by the unlicensed contractor.
* ⅜ *
(3) This section shall not affect the rights of parties other than the unlicensed contractor to enforce contract, lien, or bond remedies. This section shall not affect the obligations of a surety that has provided a bond on behalf of an unlicensed contractor. It shall not be a defense to any claim on a bond or indemnity agreement that the principal or indemnitor is unlicensed for purposes of this section.
§ 489.128, Fla. Stat. (2005) (emphasis added).
The trial court’s decision below was consistent with the clear and unambiguous language of section 489.128, as amended in 2003. We find the other issues raised on appeal to be without merit.
AFFIRMED.
COHEN, J„ and TURNER, G.B., Associate Judge, concur.
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Earth Trades, Inc. v. T & G Corp., 108 So. 3d 580 (Fla. 2013)…CANADY, J. In this case we consider the defense to a breach of contract claim that the parties were in pan delicto — equal wrongdoers. We have for review Earth Trades, Inc. v. T & G Corp., 42 So. 3d 929, 930 (Fla. 5th DCA 2010), in which the Fifth . District Court of Appeal held that section 489.128, Florida Statutes (2005), which governs construction contracting, precluded an unlicensed contractor from employing this common law defense. The Fifth…
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Griffin v. ARX Holding Corp., 208 So. 3d 164 (Fla. 2d DCA 2016)…n unlicensed contractor shall be unenforceable in law or in equity by the unlicensed contractor.” Id. The other party to the contract, however, retains its rights to enforce the contract against the contractor. See Earth Trades, Inc. v. T & G Corp., 42 So. 3d 929, 930 (Fla. 5th DCA 2010). Like an unlicensed contractor, Mr. Griffin, lacking a waiver, lacked the ability to enforce the terms of his employment contract against ARX. We are mindful that our decision may seem unjust to Mr. Griffin. After all, he n…
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S. Wild Olive, LLC v. Total Maint. Servs., LLC (Fla. 5th DCA 2024)…nlicensed contractor.” § 489.128(1), Fla. Stat. (2020). The Fifth District has rejected the notion that an unlicensed contractor can enforce an agreement when the other party knew the contractor was unlicensed. See Earth Trades, Inc. v. T & G Corp., 42 So. 3d 929, 930 (Fla. 5th DCA 2010). This holding was based on the text of section 489.128, which the Legislature amended in 2003 to clarify that a party other than the unlicensed contractor can enforce the agreement. See id.; § 489.128(3), Fla. Stat. (“This s…
Authorities Cited
- Castro v. Sangles, 637 So. 2d 989 (Fla. 3d DCA 1994)
- Kvaerner Constr., Inc. v. Am. Safety Cas. Ins. Co., 847 So. 2d 534 (Fla. 5th DCA 2003)
- Jefferson v. State, 847 So. 2d 534 (Fla. 3d DCA 2003)