MacIntyre v. Green's Pool Service, Inc.
| Decision Date | 06 July 1977 |
| Docket Number | No. 76-1092,76-1092 |
| Citation | 347 So.2d 1081 |
| Parties | Alexander C. MacINTYRE, a/k/a A. C. MacIntyre, Appellant, v. GREEN'S POOL SERVICE, INC., and Lemuel Ramos, A.I.A. Associates, Appellees. |
| Court | Florida District Court of Appeals |
Adams, George, Lee & Schulte and Amy Shield Levine, Miami, for appellant.
Smith, Mandler, Smith, Parker & Werner and Jeffrey Sarrow, Miami Beach, for appellees.
Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
The appellant Alexander C. MacIntyre, the owner of a remodeled residence, was the defendant to a mechanic's lien foreclosure brought by Green's Pool Service, Inc. MacIntyre answered the complaint and filed a third party complaint against Lemuel Ramos, A.I.A./Associates, his architect on the job, alleging negligence of the architect. Ramos counterclaimed against the owner MacIntyre alleging a balance due on his contract fee. After trial, a final judgment was entered upon the third party complaint and the counterclaim. The trial court found for the architect upon the claim of negligence and for the architect upon his claim for a balance due on his fee. This appeal by MacIntyre urges reversal of (1) the denial of his complaint against the architect for negligence, and (2) the judgment for the architect. Green's Pool Service, Inc., the lienor, is not a party to this appeal.
The owner's contention is basically that the trial court misapplied the law in failing to find negligence upon the undisputed facts presented and that the trial judge misconstrued the contract between the parties.
MacIntyre was the owner of a house located at 1835 South Bayshore Drive, which warranted improvement. To this end, MacIntyre contracted with Ramos on November 8, 1971, to act as architect on behalf of MacIntyre in the construction or remodeling of said house. The contract entered into between Ramos and MacIntyre was the standard form A.I.A. agreement between owner and architect, with modifications. The standard portion of the contract provided that the architect would receive payment of the basic compensation by a percentage of the total construction cost and, in addition, an hourly rate of pay for additional services. The contract was modified to provide that the architect would receive full payment of the basic compensation at the completion of the bidding or negotiation phase and, thereafter, to be paid an hourly rate for work actually performed by Ramos or his employees during the construction phase of the house.
On June 16, 1972, MacIntyre executed an agreement with the general contractor, Griggs, to remodel the house for a bid of $100,000.00. At the completion of the bid and negotiation phase, Ramos was paid in full in accordance with the modified contract, the agreed upon 16% of $100,000.00. After that payment, Ramos charged MacIntyre on an hourly basis for work performed by the architect or his employees as was previously agreed upon by the parties.
As a result of the impending marriage of MacIntyre, changes were made in the construction or remodeling of the house for an additional cost of $29,858.00. This additional work was reflected in a change order executed in May, 1976. After the change order was made Ramos continued to bill MacIntyre at an hourly rate through June 29, 1973. No further bill was sent to MacIntyre by Ramos prior to the counterclaim filed by Ramos on December 12, 1976, with its demand for 16% of $29,858.00.
On May 29, 1973, Griggs abandoned the construction job on MacIntyre's house. MacIntyre was also faced with a barrage of lawsuits from subcontractors who had filed complaints for foreclosure of mechanic's liens and damages against MacIntyre because they had not been paid by Griggs, the general contractor. As previously pointed out, MacIntyre filed a third party complaint and later a counterclaim against Ramos for negligence in advising the selection of Larry C. Griggs, Inc., as the general contractor for the project, negligence in advising MacIntyre as to when and to whom progress payments were to be made, and negligence in failing to file and cause to be recorded a Notice of Commencement with a Clerk of the Circuit Court or, in the alternative, to advise MacIntyre to file and record a Notice of Commencement with a Clerk of the Circuit Court.
Appellant owner's point urging error upon the court's finding that the owner had failed to establish his counterclaim for negligence of the architect is not supported by the record. The contract places upon the architect none of the duties alleged. The mechanic's lien statute places the burden of recording and posting a "Notice of Commencement" upon the "owner or his authorized agent." See Section 713.13(1), Florida Statutes (1971). The other allegations of the counterclaim are unsupported by the record because there is no showing that the duties alleged fall within the duties ordinarily assumed or placed upon an architect by custom and practice of the business community. Therefore, the judgment finding for the architect upon the counterclaim will be affirmed.
Appellant/owner's point, urging that the trial court misinterpreted the contract between the owner and the architect so that the architect was entitled to recover an additional fee upon the $29,858.00 additional construction costs has merit. The standard form A.I.A. contract was modified by the architect and as modified became the contract between the owner and the architect. The standard form provided as basic architect's compensation a fee of 16% of "construction cost." 1 The standard contract also provided for payments at an hourly rate to the architect "For...
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