BARILE EXCAVATING & PIPELINE CO., INC., APPELLANT,
v.
KENDALL PROPERTIES, INC., AND RELIANCE INSURANCE COMPANY, APPELLEES
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Barile Excavating appealed a trial court judgment dismissing its mechanic's lien foreclosure and awarding damages to the property owner for breach of contract. The appellate court affirmed the finding of non-substantial completion and liquidated damages but reversed the actual damages award due to reliance on estimates rather than actual costs and inconsistent findings regarding driveway materials.
The court affirmed the finding that the contractor failed to substantially complete the work and affirmed the liquidated damages award, but reversed the actual damages award and remanded for a new trial. Damages for breach of a construction contract must be based on the reasonable cost of actual completion, not estimates, when actual cost figures are available.
[1] Damages for breach of a construction contract are measured by the reasonable cost of completion in accordance with the contract, if possible and not economically wasteful…
[2] A trial court errs by awarding damages based on estimated costs of completion when actual cost figures are available.
Previewing 2 of 6 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“the measure of damages for an unfinished construction contract is the reasonable cost of construction and completion in accordance with the contract, if this is possible and not productive of unreasonable economic waste”
Establishes the legal standard for calculating damages in breach of construction contract cases, adopted from Restatement of Contracts Section 346(1)(a)
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceBarile Excavating contracted to perform work on Kendall Properties' property, including grading, shoulder stabilization, sidewalk and driveway install…
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PER CURIAM.
The contractor/appellant, Barile Excavating & Pipeline Co., Inc., filed a complaint against the owner/appellee, Kendall Properties, Inc., and Reliance Insurance Company to foreclose a mechanic’s lien on the owner’s property. The owner answered and counterclaimed, alleging that the contractor breached the contract and did not complete the work. The counterclaim sought damages for added costs incurred in the completion of the project. The trial court found the contractor had not substantially completed the job, dismissed the mechanic’s lien action, and found for the owner on its counterclaim for damages.
The court awarded the owner the sum of $22,050.80 “as actual or estimated damages plus the sum of $7,450.00 as liquidated damages for delay under the contract.”
The first issue raised by the appellant was whether the owner proved its damages by competent and legally sufficient evidence.
The trial court concluded that the contractor had failed to properly perform its contractual responsibilities in regard to grading, shoulder stabilization, installation of sidewalks and driveways, utility hookups, and furnishing of “as built” drawings. In all, some 14 specific items had to be completed by the owner.
The evidence in support of the owner’s claims on the 14 items was based primarily on estimates as to the cost of completion rather than the actual cost of completion. The damages allowable for a breached construction contract are discussed in the Supreme Court’s Grossman Holdings Limited v. Hourihan, 414 So. 2d 1037 (Fla.1982), decision. There, the court adopted Subsection 346(l)(a) of The Restatement of Contracts and concluded that the measure of damages for an unfinished construction contract is the reasonable cost of construction and completion in accordance with the contract, if this is possible and not productive of unreasonable economic waste. Here, it is obvious that the owner had already completed a substantial portion of the work which the contractor had failed to perform. Since these actual cost figures were available, we conclude that error occurred when the trial court based its judgment on the estimated cost of completion. The court’s judgment is phrased in terms of “actual or estimated” damages, but the evidence received was primarily based on estimates.
In addition to the above, we find that clear error occurred as to the $15,-242.00 item for the installation of 16 driveway approaches.
The trial court concluded that these driveway approaches were the responsibility of the contractor and the damage evidence offered related to construction of concrete driveways. The court also found that the contract did not require concrete driveways. It was thus error to award damages based on concrete installations rather than asphalt installations, which were substantially cheaper. In view of the error as to estimates rather than actual expenditures and the inconsistent findings as to the concrete driveways, we conclude that a new trial on damages is warranted.
We affirm the trial court’s finding as to substantial completion and as to liquidated damages and remand the matter for a new trial as to actual damages.
ANSTEAD, C.J., BERANEK, J., and C0-CALIS, PATRICIA W., Associate Judge, concur.
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Levitt-Ansca Towne Park P'ship v. Smith & Co., Inc., 873 So. 2d 392 (Fla. 4th DCA 2004)…the contract defined surplus fill as that which was “not needed for the Project.” The contractor never completed the project. Thus,' its proof came in the form of an estimation, not reality. Barile Excavating & Pipeline Co., v. Kendall Props., Inc., 462 So. 2d 1129 (Fla. 4th DCA 1984). This element of damages was too speculative to have been submitted for jury consideration.1 See Shidiam Corp. v. M & D Research Corp., 374 So. 2d 553 (Fla. 4th DCA 1979); Shadow Lakes, Inc. v. Cudlipp Constr., Inc., 658 So. 2d 1…
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T.A.S. Heavy Equip., Inc. v. Delint, Inc., 532 So. 2d 23 (Fla. 4th DCA 1988)…nenforceable requiring the court to resort to the common law rule applicable to a breach of a contract of this nature, i.e., reasonable cost of completion in accordance with the contract. Barile Excavating & Pipeline Co. v. Kendall Properties, Inc., 462 So. 2d 1129 (Fla. 4th DCA 1984). On appeal T.A.S. contends the trial court erred in (1) refusing to apply the formula provided in the contract to award damages, and (2) in calculating the actual cost to complete in using the common law measure of damages. Deli…
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Christos N. Kritikos v. Andersen, 125 So. 3d 885 (Fla. 4th DCA 2013)…cording to the trial judge, the basis of this ruling was that there had “not been one scintilla of evidence” of the “cost of correcting the work” or overbilling. It appears that the court read Barile Excavating & Pipeline Co. v. Kendall Props. Inc., 462 So. 2d 1129 (Fla. 4th DCA 1984) for the proposition that, to recover damages for construction defects, a plaintiff must show that the defects were repaired and base the damages on the actual cost of the repairs, rather than using the estimated cost of completin…
Authorities Cited
- Grossman Holdings Ltd. v. Hourihan, 414 So. 2d 1037 (Fla. 1982)