Prime Investors & Developers, LLC v. Meridien Cos., 4D19-1005

• Court: Court of Appeal of Florida (US)
• Writing for the Court: Gerber, J.
• Citation: 289 So.3d 1
• Parties: PRIME INVESTORS & DEVELOPERS, LLC and Homestead Holdings II, LLC, Appellants, v. The MERIDIEN COMPANIES, INC., Appellee.
• Docket Number: No. 4D19-1005,4D19-1005
• Decision Date: 22 January 2020

289 So.3d 1

PRIME INVESTORS & DEVELOPERS, LLC and Homestead Holdings II, LLC, Appellants,

v.The MERIDIEN COMPANIES, INC., Appellee.

No. 4D19-1005

District Court of Appeal of Florida, Fourth District.

[January 22, 2020]

Vincent F. Vaccarella and Craig Lewis of Vincent F. Vaccarella, P.A., Fort Lauderdale, for appellants.

William M. Lindeman of William M. Lindeman, P.A., Orlando, for appellee.

Gerber, J.

A developer and a contractor jointly appeal from the circuit court's order granting a subcontractor's motion for final summary judgment on the subcontractor's claims for breach of contract and to foreclose a construction lien, arising from the subcontractor not receiving full payment for its installation of cabinets and countertops on a hotel project.

The developer and the contractor argue the circuit court erred in entering summary judgment for many reasons, three of which we address here: (1) the contractor's affidavit reflected genuine issues of material fact regarding the subcontractor's material quality and installation; (2) the subcontractor's motion did not address the developer's third affirmative defense alleging lack of compliance with the construction lien statutes' notice and timing requirements; and (3) the circuit court lacked subject matter jurisdiction over the construction lien foreclosure claim because the property is located in Miami-Dade County, not Broward County.

We conclude the first two arguments have merit, for reasons explained below. Therefore, we reverse the circuit court's order granting the subcontractor's motion for final summary judgment. Although the third argument is moot by our decision, we will briefly address that argument because that issue may recur on remand.

We present this opinion in three parts:

1. Procedural history;

2. The subcontractor's summary judgment motion; and

3. Our review.

1. Procedural History

The developer hired the contractor to construct a hotel in Miami-Dade County. The contractor then hired the subcontractor to install cabinets and countertops for all guest rooms. The subcontract provided, in pertinent part:

Subcontractor acknowledges TIME IS OF THE ESSENCE in the performance of all Work.... Subcontractor is responsible for monitoring its progress in completing the Work in accordance with the Overall Project Schedule ... to be prepared by the Contractor after consultation with the Subcontractor.

....

The parties acknowledge that Broward County, Florida is the proper venue for any claim arising out of this Agreement.

....

Work shall be performed in a timely, quality, professional and workmanlike manner....

....

Contractor's Construction Manager shall check all Work after the ... Subcontractor ... has inspected the Work and made any necessary corrections. Payment for Work shall be approved and processed only after the Work to be performed has been 100% completed and found to be free of any defects, errors, omissions or discrepancies, as determined in Contractor's Construction Manager's sole and absolute discretion....

The subcontractor eventually installed the cabinets and countertops in the hotel, and the contractor's construction manager signed off on the installation. The contractor paid the subcontractor in part, but withheld full payment because the contractor found that the cabinets and countertops were deficient in both material quality and installation.

The contractor later filed, in Broward County circuit court, a breach of contract complaint against the subcontractor, alleging that the subcontractor failed to provide the correct materials, timely install the materials, properly install the materials, and correct the defective work.

In response, the subcontractor filed an answer, a counterclaim for breach of contract against the contractor for non-payment, and a third party complaint to enforce its construction lien against the developer. The subcontractor's answer and third party complaint pled that venue was proper in Broward County.

In response to the subcontractor's third party complaint, the developer filed an answer and affirmative defenses. The developer's answer admitted venue was proper in Broward County, but denied the remaining allegations. The developer's third affirmative defense alleged that the subcontractor had failed to comply with the notice and timing requirements of the construction lien statutes provided in chapter 713, Florida Statutes (2016).

2. The Subcontractor's Summary Judgment Motion

After discovery, the subcontractor filed a motion for final summary judgment. The motion alleged, in pertinent part: the contractor and subcontractor modified the subcontract so that the timing of the subcontractor's performance was not linked to the overall project schedule; the contractor agreed to swap out certain materials to save costs; the subcontractor installed the materials in conformance with the contractor-approved shop drawings; all of the materials were installed; and any defective installations were simply punch list items, but the contractor never provided a punch list.

The subcontractor's motion for summary judgment did not address the developer's third affirmative defense alleging the subcontractor had failed to comply with chapter 713's notice and timing requirements.

The developer and the contractor jointly filed a response to the subcontractor's motion for summary judgment. The response argued, in pertinent part: the subcontract provided that the subcontractor's performance was linked to the overall project schedule and time was of the essence, and no modification was made to those timing provisions; the subcontractor was months late in producing the materials, causing the project's overall progress and the hotel's opening to be delayed; the subcontractor's materials did not meet the developer's and the contractor's specification standards; and the subcontractor failed to correct the deficiencies in materials and installation.

In support of the response, the contractor and the developer filed the contractor's chief operating officer's affidavit. The affidavit alleged, in pertinent part:

8. [The subcontractor] failed to adhere to the Overall Project Schedule, failed to adhere to [the contractor's] time schedule, and did not prosecute their work under the Subcontract in a timely or diligent manner, delaying the overall progress of the Project.

9. [The contractor and subcontractor] agreed to a schedule for the cabinets to be delivered and installed to the Project and [the subcontractor] was bound by the terms of the Subcontract to deliver in accordance with that schedule. [The subcontractor] failed to produce its cabinets in accordance with the schedule and was more than three months late. Once the cabinets were late, [the subcontractor] essentially held the cabinets hostage and extorted a change order from [the contractor] for accelerated delivery of the cabinets. [The subcontractor] then failed to meet the delivery schedule that it promised pursuant to the change order.

....

11. [The subcontractor's] delays in its cabinetry work caused delays to the opening of the hotel and ultimately, [the contractor] had to finish a significant portion of [the subcontractor's] work itself.

13. Pursuant to the terms of the Subcontract, [the subcontractor] was to finish all Guest Room kitchenette and bathroom cabinetry and countertops in accordance with all of the Contract Documents, including but not limited to the ... [s]pecifications[,] a list of which were attached to and incorporated into the Subcontract.

14. The cabinets provided to the Project by [the subcontractor] did not meet the standards of the Contract Documents or the ... [s]pecifications and were unacceptable....

15. I personally notified [the subcontractor] of

...