Florida Construction Law

Even if it appears that the liquidated damages are proper, the prudent contractor will not accept the assessment at face value because there are many ways to defeat a liquidated damages clause. Liquidated damages are a fact of life in modern construction contracting. However, even if your contract contains this provision and the owner has assessed liquidated damages that does not mean the assessment is valid or enforceable. There are a number of ways you might be able to prevent an owner from keeping contract proceeds that are rightfully yours. This article will provide the reader with an idea or two that will help keep hard-earned contract proceeds in the contractor’s pocket. In a breach of contract situation, liquidated damages are designed to provide a means to compensate the non-breaching party when the actual damages are not readily ascertainable. In other words, when the non-breaching party’s actual damages will be difficult to determine in the event of a breach, then t...

Rocka Fuerta Construction, Inc. v. Southwick, Inc ., 38 Fla. L. Weekly D79a, Case No. 5D11-2994, opinion filed December 28, 2012. Owner and contractor settled a claim of $42,835 with an agreement for owner to pay only $8,000, owner breached by issuing a dishonored check. Contractor's suit for full amount of claim was dismissed with dismissal by the trial court as a sanction based on contractor's alleged fraud for failing to first seek recession of the settlement agreement and filing suit without referring to the settlement agreement. The appellate court held that there was a lack of the type of egregious misconduct or extreme circumstances too support dismissal with prejudice, reversed the dismissal for lack of any fraud, and pointed out that the defendant's position could have been raised instead as an affirmative defense. (from RPPTL Subcommittee). Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1211 N Franklin St Tampa, FL 3...

"Breach of contract requires proof of the parties' mutual assent, or meeting of the minds, on all the essential terms of their agreement."   Sam Rodgers Properties v. Chmura , 2011 WL 1565446 (Fla. 2d DCA 2011). Trenton H. Cotney Florida Bar Certified in Construction Law Glenn Rasmussen Fogarty & Hooker, P.A. 100 S. Ashley Dr., Suite 1300 Tampa, FL 33602 (813) 229-3333 www.trentcotney.com

Summary judgment in favor of condominium purchaser against developer for breach of contract and return of deposits was reversed to give the parties an opportunity to be heard and due to existence of disputed genuine issues of material fact pertaining to the breach.   Ness Racquet Club, LLC v. Ocean Four 2108, LLC,    2011 WL 4578164 (Fla. 3d DCA  2011). Trenton H. Cotney Florida Bar Certified in Construction Law Glenn Rasmussen Fogarty & Hooker, P.A. 100 S. Ashley Dr., Suite 1300 Tampa, FL 33602 (813) 229-3333 www.trentcotney.com

Insurer's claim file was not discoverable in lawsuit based on breach of contract and not bad faith against the insurer.   Gavin's Ace Hardware, inc. v. Federated Mutual Insurance Company , 2011 WL 5104476 (M.D. Fla. 2011).   Trenton H. Cotney Board Certified in Construction Law Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278 www.trentcotney.com

Impossibility of performance is a defense to a breach of contract claim.  Where it is impossible to perform under the terms of a contract because of current conditions, a contractor may assert this defense.   Crown Ice Machine Leasing Co. v. Sam Senter Farms, Inc. , 174 So.2d 614 (Fla. 2d DCA 1965). Trenton H. Cotney Board Certified in Construction Law Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278 www.trentcotney.com

Breach of contract damages in the construction context should be calculated from the date of the breach.  Peach State Roofing, Inc. v. 2224 South Trail Corp. , 2008 WL 2150947 (Fla. 2d DCA 2008). Trenton H. Cotney Board Certified in Construction Law Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278 www.trentcotney.com

Homeowner’s claim for breach of contract was unsuccessful against an insurer because homeowner failed to meet certain conditions precedent to payment under the policy.  The homeowner failed to submit to an examination under oath and provide requested documents that reflect the amount of the claimed loss.   Edwards v. State Farm , 2011 WL 2496625 (Fla. 3d DCA 2011). Trenton H. Cotney Board Certified in Construction Law Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278 www.trentcotney.com

The trial court has broad discretion to determine which party prevailed on the significant issues in the litigation for purposes of determining entilement to attorney's fees in a breach of contract action.  Sidlow v. Bowles Custom Pool & Spas, Inc ., 32 So.3d 722 (Fla. 5th DCA 2010). Trenton H. Cotney Board Certified in Construction Law Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278 www.trentcotney.com

Mario’s Enterprises Painting and Wallcovering, Inc., Case No. 3D10-259, filed January 19, 2011: Affirmed trial court’s award of breach of contract damages against a subcontractor hired to re-paint a public school but who refused to complete work base on discovery of existing lead contamination since the levels were well-below OSHA’s acceptable exposure limits . Trenton H. Cotney Board Certified in Construction Law Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278 www.trentcotney.com