Florida Construction Law

Anyone who has been given express authority to act on behalf of a contractor has the power to bind that contractor.  For example and generally speaking, if a project manager has been given the express authority to execute change orders, the project manager will be deemed an agent for the contractor and bind the contractor by executing those change orders. 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

In CTX Mortgage Co., LLC v. Advantage Builders of America, Inc ., 47 So.3d 844 (Fla. 2d DCA), the Court held that a lender was not enriched by undisbursed proceeds because it suffered damages in the form of a diminished security interest.  Accordingly, the contractor was unable to prove that the lender's retention of the funds were inequitable. 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 http://www.glennrasmussen.com

The measure of damages for an unjust enrichment claim in the construction context is the value of the improvements that enhanced the property.  Levine v. Fieni McFarlane, Inc ., 690 So.2d 712 (Fla. 4th DCA 1997).  Therefore, a contractor that sues an owner for unjust enrichment would be entitled to seek damages for the benefit conferred on the owner by way of the improvements provided by the contractor to the property. 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 http://www.glennrasmussen.com

No damages for delay clauses are generally upheld in court.  However, Florida case law provides that there are certain circumstances that may allow a contractor or subcontractor to pursue delay damages despite the existence of a no damages for delay clause in the construction contract.  See Triple R. Paving v. Broward County , 774 So.2d 50 ( Fla. 4th DCA 2000); Southern Gulf Utilities, Inc. v. Boca Ciega Sanitary District , 238 So.2d 458 (Fla. 2d DCA 1970).  For example, if an owner has acted in bad faith, defrauded the contractor, or actively interfered with the contractor’s ability to construct a project, then a no damages for delay provision will be deemed ineffective.  Newberry Square Dev. Corp. v. Southern Landmark, Inc., 578 So.2d 750 (Fla. 1 st DCA 1991).   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

In CC-Aventura, Inc. v. Weitz Co., LLC, 2009 WL 230155 (S.D. Fla. 2009), the Court analyzed the effect of the prime contract on subcontract terms.  The prime contractor sought consequential damages from the subcontractor.  The subcontractor argued that the prime contract was incorporated by reference, and that a provision in the prime contract precluded the owner from seeking non-delay damages.  The Court held that the subcontract specifically defined the types of damages that contractor could seek against its sub, and as such, the subcontract provision controlled.  However, the Court noted that another provision in the subcontract stated that the prime could seek damages from the sub to the same extent that the owner could seek damages from the prime.  Accordingly, the Court could not determine the types of damages recoverable until it was determined the scope of damages the owner could seek from the prime. Trenton H. Cotney Board Certified in Constr...

LaSalle Bank National Association v. Blackton , Case NO. 5D10-499 (Fla. 5th DCA 2011) held that where a notice of commencement was recorded before a mortgage was recorded, the notice of termination of the notice of commencement was recorded on same day as the mortgage was recorded, and a construction lien was recorded thereafter, the earlier recorded mortgage had priority over the construction lien.  The trial court erred in finding that a notice of termination was not effective to terminate the notice of commencement, and that the construction lien related back to the filing of the notice of commencement.  The trial court erroneously concluded that a notice of termination having both the owner and contractor as the same entity cannot be effective.  It was not necessary to attach a contractor's final payment affidavit to the notice of termination where the owner averred in the notice of termination that all lienors had been fully paid.   Trenton H. Cotney B...

CILB issued an Order dated October 15, 2010, regarding the Petition for Declaratory Statement filed on August 9, 2010 by Bruce Landers. The board’s Order provides that BUILDING contractors may install non-structural, non-load-bearing windows and doors in buildings greater than 3 stories in height pursuant to s. 489.105(3)9c). Editor Note: Most improvements to structures in excess of 3 stories requires a GENERAL contractor’s license, so this statement represents an expansion of the scope of work permitted to be performed by licensed BUILDING contractor. 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