MOSCATO CORP.
v.
MUTCHNIK CONSTRUCTION GROUP, INC., ET AL.
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
A written contract requirement that all change orders be approved in writing may be waived by the parties' course of dealing where one party orally requests changes, the other performs them, and the requesting party pays the invoices.
[1] A written contract provision requiring written approval for change orders may be waived by the parties' course of dealing where one party makes oral requests for changes,…
Previewing 1 of 1 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“A written contract or agreement may be altered or modified by an oral agreement if the latter has been accepted and acted upon by the parties in such manner as would work a fraud on either party to refuse to enforce it.”
Court citing Pro. Ins. Corp. v. Cahill, 90 So. 2d 916, 918 (Fla. 1956) for the principle that written contracts may be modified by oral agreement accepted and acted upon by the parties.
Moscato and Mutchnik entered into a cost-plus construction contract for work on Fisher Island condominium units. Disputes arose over alleged overbilli…
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Third District Court of Appeal State of Florida
Opinion filed May 14, 2025. Not final until disposition of timely filed motion for rehearing.
Nos. 3D24-0091, 3D24-0787 & 3D24-0851 Lower Tribunal No. 19-17991-CA-01
Moscato Corp., Appellant,
vs.
Mutchnik Construction Group, Inc., et al., Appellees.
Appeals from the Circuit Court for Miami-Dade County, David C. Miller, Judge.
Crabtree & Auslander, and Charles M. Auslander, John G. Crabtree and Brian C. Tackenberg; Rodriguez Tramont & Nuñez, P.A., and Frank R. Rodriguez, Paulino A. Núñez, Jr., and Paul M. Núñez, for appellant.
Duane Morris LLP, and Scott D. Kravetz and Elisabeth L. Rabin, for appellees.
Before SCALES, MILLER¹ and BOKOR, JJ.
¹ Judge Miller did not participate in oral argument. Judge Lindsey has recused herself from further involvement in this case.
PER CURIAM.
We grant the motion for written opinion, withdraw our prior unelaborated opinion, and substitute the following in its place.
Appellant Moscato Corp. (“Moscato”) filed three separate appeals in this case. In case number 3D24-0091, Moscato challenges a final summary judgment entered against it; in case number 3D24-0787, Moscato challenges an order awarding attorneys' fees and costs against it in favor of appellees, Mutchnik Construction Group, Inc. and Mark Mutchnik (together, "Mutchnik”); and in case number 3D24-0851, Moscato challenges the trial court's amended final judgment incorporating the order awarding costs and fees to Mutchnik. On May 24, 2024, this Court consolidated the three appeals. We affirm in all respects.
Moscato and Mutchnik entered into a cost-plus construction contract whereby Mutchnik would perform construction work on Moscato's condominium units on Fisher Island in Miami Beach, Florida. Disputes arose from the construction project, resulting in Mutchnik filing a construction lien. Ultimately, both parties filed lawsuits, and the trial court consolidated the parties' competing lawsuits. Essentially, Moscato alleged that Mutchnik had overcharged it, while Mutchnik alleged that Moscato had breached the parties' contract by withholding payment for certain of Mutchnik's payment applications.
The parties filed competing summary judgment motions. The trial court, after conducting a hearing, entered a November 28, 2023 summary judgment order in favor of Mutchnik. Ultimately, the trial court entered an amended final judgment, which encompassed the challenged fee order, in favor of Mutchnik.
While Moscato makes several arguments on appeal, its principal argument is that the trial court erred in its summary judgment by holding that Mutchnik had not overbilled Moscato. The trial court concluded that, although the parties' cost-plus contract required that all change orders be approved in writing, the summary judgment record established that this provision was routinely waived by the parties' course of dealing: Moscato would orally request changes to the project; Mutchnik would perform those changes; and Moscato would pay the invoices for those changes. See Wiener v. Wiener, 343 So. 2d 1319, 1322 (Fla. 3d DCA 1977); Pro. Ins. Corp. v. Cahill, 90 So. 2d 916, 918 (Fla. 1956) (“A written contract or agreement may be altered or modified by an oral agreement if the latter has been accepted and acted upon by the parties in such manner as would work a fraud on either party to refuse to enforce it."); see also Okeechobee Resorts L.L.C. v. EZ Cash Pawn, Inc., 145 So. 3d 989, 995 (Fla. 4th DCA 2014). On our de novo review of the record,² we find no error in the trial court's decision.
² We review a summary judgment order de novo. Ibarra v. Ross Dress for Less, Inc., 350 So. 3d 465, 467 (Fla. 3d DCA 2022).
We also discern no error in the trial court's award to Mutchnik of attorneys' fees per the parties' contract and costs per section 57.041(1) of the Florida Statutes (2024) (“The party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment[.]").³
Affirmed.
³ While Mutchnik did not file a cross appeal of the fee award order or the trial court's amended final judgment including fees, it appears that, in its answer brief, Mutchnik seeks for this Court to award it an additional $97,529.90 for accounting fees that Mutchnik did not seek below. We decline Mutchnik's invitation in this regard.