Casa Linda Tile & Marble Installers, Inc. v. Highlands Place 1981, Ltd., s. 92-0914

• Decision Date: 10 August 1994
• Docket Number: Nos. 92-0914,92-3121 and 93-0686,s. 92-0914
• Citation: 642 So.2d 766
• Parties: 19 Fla. L. Weekly D1697 CASA LINDA TILE & MARBLE INSTALLERS, INC., Appellant, v. HIGHLANDS PLACE 1981, LTD., Appellee. CASA LINDA TILE & MARBLE DISTRIBUTORS, INC. and Casa Linda Tile and Marble Installers, Inc., Appellants. v. HIGHLANDS PLACE 1981, LTD., Appellee.
• Court: Florida District Court of Appeals

Page 766

642 So.2d 766

19 Fla. L. Weekly D1697

CASA LINDA TILE & MARBLE INSTALLERS, INC., Appellant, v. HIGHLANDS PLACE 1981, LTD., Appellee.

CASA LINDA TILE & MARBLE DISTRIBUTORS, INC. and Casa Linda

Tile and Marble Installers, Inc., Appellants. v. HIGHLANDS PLACE 1981, LTD., Appellee.

Nos. 92-0914, 92-3121 and 93-0686.

District Court of Appeal of Florida Fourth District.

Aug. 10, 1994.

Rehearing Denied Oct. 11, 1994.

Pedro A. Cofino and Nancy Hardy of Pedro A. Cofino, P.A., and Douglas D. Stratton, Miami Beach, for appellant Casa Linda Tile & Marble Installers, Inc.

Stanley Jay Bartel of Stanley Jay Bartel, P.A., Miami, for appellant Casa Linda Tile & Marble Distributors, Inc.

Madelyn Simon Lozano and S. Austin Carr of Kenney Burd & Markowitz, Miami, for appellee.

STONE, Judge.

We reverse a final judgment that denies Casa Linda's mechanic's lien and breach of contract claims and enters judgment for the owner, Highlands, on its counterclaim. Casa Linda installed marble tile floors in the public area of Highlands' building. At the time Casa Linda ceased work, $9,280.64 remained unpaid on the $48,000 contract.

The trial court determined that Casa Linda breached its contract with Highlands by failing to correct the items on an extensive punch list and by failing to secure the architect's certificate of substantial completion.

The $13,834 judgment on the counterclaim consists of $4,900 costs incurred to correct defects, $3,434 anticipated costs to replace specified tiles to remedy existing and anticipated cracks, $5,000 in punitive damages for wrongfully filing a lis pendens after the claim of lien was "bonded off," and $500 for attorney's fee expenses incurred in bonding off the lien.

The trial court's judgment fails to address an essential question on the mechanic's lien claim: whether or not the job was substantially completed. This was not an oversight, as the trial court resolved the claim strictly on breach of contract principles, finding that Casa Linda did not complete the punch list and obtain the architect's certificate, condition precedent to Highlands' obligation to make final payment. However, the Highlands architect did testify that he considered the work to be in a state of "substantial completion," about "90 percent completed."

When a contractor has substantially performed and otherwise complied with the mechanic's lien statute, it is entitled to an award on its mechanic's lien claim for the contract price less all damages caused by its failure to render full performance. See Fleming v. Urdl's Waterfall Creations, Inc., 549 So.2d 1057 (Fla. 4th DCA 1989); Viking Communities Corp. v. Peeler Constr. Co., 367 So.2d 737 (Fla. 4th DCA 1979); Ocean Ridge Dev. Corp. v. Quality Plastering, Inc., 247 So.2d 72 (Fla. 4th DCA 1971). Substantial performance is defined in Ocean Ridge as:

that performance of a contract which, while not full performance, is so nearly equivalent to what was bargained for that it would be unreasonable to deny the promisee the full contract price subject to the promisor's right to recover whatever damages may have been occasioned him by the promisee's failure to render full performance.

247 So.2d at 75.

A contractor is not entitled to a lien in the absence of substantial performance. See Braverman v. Van Bower, Inc., 583 So.2d 381 (Fla. 3d DCA), rev. denied, 592 So.2d 683 (Fla.1991); Pitts v. Ahlswede, 139 So.2d 159 (Fla. 1st DCA 1962). However, failing to secure a contractually required architect's certificate, alone, should not prevent a lienor from recovering for work performed under the contract where the court finds that there has been substantial performance. See generally Poranski v. Millings, 82 So.2d 675 (Fla.1955).

Here, the $4,900 in corrective work is not in issue and we find record support for, and affirm, the court's findings as to the disputed $3,434 damages for past and future cracked tile repairs. We reject Appellants' claim that it was error to allow the architect to testify that the tiles were defectively laid and to permit the architect to rely on a lay witness' test of the tiles, at the architect's instructions, to determine the number of tiles that sounded "hollow." We discern no reason to preclude a supervising architect from evaluating the workmanship of subcontractors notwithstanding the architect's lack of more specific expertise in the particular field. We note that other evidence confirmed that some of the tiles were laid by simply placing "mud" on the corners of the tiles rather than on the floor under the entire tile which accounts for the hollow spaces and cracks already occurring.

Therefore, we affirm that part of the judgment awarding $4,900 and $3,434 on the counterclaim. However, the record will not...