ROLAND L. ROUSSELLE, APPELLANT,
v.
B & H CONSTRUCTION CO., INC., APPELLEE

Fla. 1st DCA | 1978-05-17
No. FF-342
BOYER and MILLS, JJ., concur.
358 So. 2d 614 Florida District Court of Appeal, First District (1978) Positive Treatment
Cited by 8 cases

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Synopsis

The court reversed a final judgment impressing a mechanic's lien, finding that the contractor's deviations from the contract, including failure to match the existing building and encroachment on adjacent property, were significant.


Holding

The court held that the trial court erred in impressing a mechanic's lien, as the contractor's numerous deviations from the contract demonstrated a failure to perform in a workmanlike manner and match the existing structure.


Headnotes

[1] A contractor's willful breach of contract or intentional failure to comply with specifications precludes the application of the doctrine of substantial performance.

[2] When a contractor willfully breaches a contract or intentionally fails to comply with specifications, the owner is entitled to recover the cost of making the work conform…

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Facts & Procedural History

A contractor sued to foreclose a mechanic's lien for an addition built on a property. The property owner counterclaimed, alleging the addition did not…

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Opinion of the Court
McCORD, Chief Judge.

McCORD, Chief Judge.

This is an appeal from final judgment impressing a mechanic’s lien upon appellant’s property. We reverse.

Appellee, who was plaintiff below, brought suit to foreclose a mechanic’s lien against appellant alleging that appellee had performed a contract made with appellant but that appellant had not paid $3,952.50 of the $12,425 contract. Appellant filed an answer denying that he owed the balance due and also filed a counterclaim alleging that (1) appellee failed to perform the work in a manner that would “match” appellant’s existing building as was agreed upon in the contract and that appellee’s performance was so unskillful and defective that appellant would have to expend over $5,334 to correct the defects, and (2) the defects in the work performed constituted breach of contract on the part of appellee for which appellant is entitled to damages. The cause was tried before the judge without a jury.

The written contract entered into between the parties which was prepared by appellee provided that appellee would construct an addition on appellant’s existing building in “a manner which will match your present building.” The undisputed evidence shows that upon appellee’s commencement of work, it was immediately determined that the addition must be reduced in size to remain within appellant’s property lines so as not to encroach into adjacent property. In the course of the construction, however, appellee constructed the eaves so that they extended two to three inches over a retaining wall and encroached on the adjacent landowner’s property diverting rainwater onto a neighbor’s land. Also without consulting appellant, appellee constructed a sloping roof on the addition instead of a flat roof as was on the existing building. Further, appellee installed wooden fascia on the addition rather than steel fascia as was on the existing structure. Appellee used brick in the construction which did not match the brick of the original building, and appellee poured foundation for the brick work in such a manner that the foundation from front to back of the addition varied by several inches. Because of this, the brick work to the bottom of the windows on the westerly side of the building was several inches out of level which resulted in the brick mason having to install varying thicknesses of mortar and parts of brick under each window along the side of the wall. This created an unsightly appearance and requires that appellant later tear out the wall and rebuild it in a workmanlike manner. In addition the stucco installed on the addition cracked while the stucco on the main building was not cracked.

Appellee’s chief construction officer admitted that he constructed the addition with a sloped roof without consulting appellant; that the wood fascia did not match the steel fascia on the existing structure, and that he constructed the eaves so that they encroached over defendant’s property line. Appellant produced expert witnesses who testified with particularity as to the costs of correcting the defective work and that such costs would be in excess of $5,000.

The trial court made only general findings that the equities were with appel-lee and against appellant and there was due to appellee the $3,952.50 balance on the contract plus attorneys fees and costs. It also made a general finding that the equities on appellant’s counterclaim were with appellee and against appellant and that appellant should take nothing in his counterclaim. An appellate court will not substitute its judgment for that of the trial court on questions of fact if there is competent substantial evidence to support the judgment. Lowery v. Rosenberg, 147 So. 2d 321 (Fla. 1 DCA 1962). However, it is apparent from the undisputed evidence contained in the record in this case that the court’s judgment is not grounded on competent, substantial evidence. Perhaps the trial judge felt that the doctrine of substantial performance was applicable here. That doctrine is not applicable, however, where a contractor has willfully breached the terms of his contract or has intentionally failed to comply with the specifications. In such case, the owner is entitled to be awarded the cost of making the work conform to the contract and specifications. See 13 Am. Jur.2d, Building and Construction Contracts, § 81 at pp. 83-84.

Reversed and remanded with directions to the trial court to reevaluate the evidence in the light of this opinion and fix appellant’s damages on his counterclaim.

BOYER and MILLS, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Young v. Johnston, 475 So. 2d 1309 (Fla. 1st DCA 1985)
    …he owner is entitled to an award of the cost of completing the work in conformity with the contract and specifications, including the actual expenditures made in good faith as necessary to complete the job, Rousselle v. B & H Construction Co., Inc., 358 So. 2d 614 (Fla. 1st DCA 1978); Sea Ledge Properties, Inc. v. Dodge, 283 So. 2d 55 (Fla. 4th DCA 1973), cert. dismissed, 285 So. 2d 618 (Fla.1973); R.K. Cooper Builders, Inc. v. Free-Lock Ceilings, Inc., 219 So. 2d 87 (Fla. 3d DCA 1969). The burden is first up…
  • Nat'l Constructors, Inc. v. Ellenberg, 681 So. 2d 791 (Fla. 3d DCA 1996)
    …specifications of the contract is inadvertent or unintentional and unimportant so that the work actually performed is substantially what was called for in the contract.”) (citing 17A C.J.S. Contracts § 509(b) (1974)); Rousselle v.B & H Constr. Co., 358 So. 2d 614, 615 (Fla. 1st DCA 1978) (“[The] doctrine [of substantial performance] is not applicable ... where a contractor has willfully breached the terms of his contract or has intentionally failed to comply with specifications. In such case, the owner is en…
  • Country Manors Ass'n, Inc. v. Master Antenna Sys., Inc., 458 So. 2d 835 (Fla. 4th DCA 1984)
    …as may be necessary. ORDERED this 15th day of July, 1983, at West Palm Beach, Palm Beach County, Florida. Substantial, competent evidence supports the conclusion that MAS is the owner of the underground system. Rousselle v. B & H Construction Co., 358 So. 2d 614 (Fla. 1st DCA 1978). We therefore affirm that portion of the judgment so holding. In reaching this decision we also hold that the underground system, together with the connections and installations within the walls, are not common elements. Section…

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