Castro v. Sangles

• Decision Date: 07 June 1994
• Docket Number: No. 93-1565,93-1565
• Parties: 19 Fla. L. Weekly D1242 Juan J. CASTRO and Blanca I. Castro, husband and wife, Appellants, v. Jose SANGLES, Appellee.
• Court: Florida District Court of Appeals

Page 989

637 So.2d 989

19 Fla. L. Weekly D1242

Juan J. CASTRO and Blanca I. Castro, husband and wife, Appellants, v. Jose SANGLES, Appellee.

No. 93-1565.

District Court of Appeal of Florida Third District.

June 7, 1994.

Arthur J. Morburger, Peter A. Cohen, Miami, for appellants.

No appearance for appellee.

Before SCHWARTZ, C.J., and JORGENSON and LEVY, JJ.

SCHWARTZ, Chief Judge.

The Castros agreed with Sangles, an unlicensed contractor, to build a duplex on their property for the apparently low sum of $42,500.00. Mr. Castro then himself "pulled" the building permit from the Dade County authorities on the knowing and sworn-to misrepresentations that he was the "owner-builder" and that no contractor was involved. When Sangles's construction proved unsatisfactory, the Castros brought this action for his breach of the agreement. The case was referred to a General Master, who recommended dismissal of the action on the ground that the alleged agreement was unenforceable under section 489.128, Florida Statutes (1991). ¹ The Castros now appeal from a final judgment confirming that report. We affirm.

In our view, the conclusion that the action is barred by the clear terms of the statute that a contract like this one is "unenforceable in law," Sec. 489.128, is entirely correct. It is, of course, the general rule that no action may be maintained on an "illegal" agreement. Local No. 234 v. Henley & Beckwith, Inc., 66 So.2d 818, 823 (Fla.1953) ("[A] contract against public policy may not be made the basis of any action either in law or in equity."); Stewart v. Stearns & Culver Lumber Co., 56 Fla. 570, 587-88, 48 So. 19, 25 (1908) (contracts violating public policy designed for public welfare are illegal and will not be enforced by the courts); D & L Harrod, Inc. v. U.S. Precast Corp., 322 So.2d 630, 631 (Fla. 3d DCA 1975) ("There is no legal remedy for that which is illegal itself"; carrier who hauled goods without license in violation of statute enacted for protection of public denied recovery under contract). It is true, as the plaintiffs point out, that this doctrine has sometimes not been applied when, as here, one dealing with another who is not properly licensed attempts to recover for the non-licensee's own breach of contract. E.g., Cooper v. Paris, 413 So.2d 772 (Fla. 1st DCA 1982) (permitting recovery of commissions paid to unlicensed real estate broker). See generally Annot., Recovery Back of Money Paid to Unlicensed Person Required by Law to Have Occupational or Business License or Permit to Make Contract, 74 A.L.R.3d 637 (1976). These authorities, however, do not apply to this situation.

1. First, these cases are founded on the fact that the statute in question was designed to protect a class of consumers from the perils of dealing with an unlicensed contractor, so that it would be contradictory to deny an innocent victim the right to recover against that wrongdoer. Cooper, 413 So.2d at 773-74; 11 Fla.Jur.2d Contracts Sec. 83 (1979). This underlying premise is pointedly not true of section 489.128. As its preamble states, ² the statute was enacted to safeguard the public as a whole from the activities of incompetent contractors. The effect of the combination of Hurricane Andrew and shoddy construction practices not only upon the owner himself, but his neighbors and the entire community, is too recent a memory to require emphasis of the fact that violations of the statute present a real danger, as the legislature foresaw, to the general public. Hence, the general rule forbidding reliance on such a contract directly applies.

2. Just as important, one may recover upon an apparently illegal contract only if he himself has not been guilty of wrongdoing--that is, as we pontifically say in the law, that he is not in pari delicto with the actual malefactor. Local No. 234, 66 So.2d at 821; Cooper, 413 So.2d at 773. Again, that is not the case here. ³ As General Master Farrell properly stated:

Plaintiff cites Stewart v. Stearns & Culver Lumber Co., 56 Fla. 570, 48 So. 19, 25 (1908), declaring:

"The courts will not in general aid either party to enforce an illegal agreement, but will leave the parties where they place themselves with reference to such illegal agreement, except where the law or public policy requires action by the courts, or where the parties are not in pari delicto..." [E.S.]

The plaintiff, however, disregards or minimizes the fact that plaintiff, Juan Castro, was clearly in pari delicto since it was he who, for his own financial gain, made a specific representation to official authorities, under oath, that the building permit was expressly sought by the owner as builder thereby disavowing the presence of the "general contractor" against whom he now seeks to enforce an alleged express oral agreement.

We entirely agree that Castro's improper securing of the building permit--which was contrary not only to his sworn affidavit and the Metropolitan Dade County Code, ⁴ but to Chapter 489 itself ⁵--precluded his recovery. ⁶ We cannot allow one to invoke the judicial process when, for his own financial benefit, he has participated in the very activity the law precludes, with the resulting danger that the law seeks to avoid. See Inter-Continental Promotions, Inc. v. Miami Beach First Nat'l Bank, 441 F.2d 1356, 1361 (5th Cir.1971) (participants in a boxing match who knowingly engaged in "subterfuge" to bring event within statutory exception, barred from recovery against promoters of illegal fight), cert. denied, 404 U.S. 850, 92 S.Ct. 85, 30 L.Ed.2d 89 (1971).

Affirmed.

1 489.128 Contracts performed by unlicensed contractors unenforceable.--As a matter of public policy, contracts entered into on or after October 1, 1990, and performed in full or in part by any contractor who fails to obtain or maintain his license in accordance with this part shall be unenforceable in law, and the court in its discretion may extend this provision to equitable remedies. However, in the event the contractor obtains or reinstates his license the provisions of this section shall no longer apply.

2 489.101 Purpose.--The Legislature recognizes that the construction and home improvement industries may pose a danger of significant harm to the public when incompetent or dishonest contractors provide unsafe, unstable, or short-lived products or services. Therefore, it is necessary in the interest of the public health, safety, and welfare to regulate the construction industry.

3 See Kirkendall v. Heckinger, 105 Mich.App. 621, 628 n. 2, ...