Robinson v. Albanese

• Decision Date: 06 May 1994
• Docket Number: No. 92-2832,92-2832
• Citation: 636 So.2d 831
• Parties: 19 Fla. L. Weekly D1013 Thomas L. ROBINSON and Laura A. Robinson, his wife, Appellants, v. Domenic ALBANESE, Appellee.
• Court: Florida District Court of Appeals

Page 831

636 So.2d 831

19 Fla. L. Weekly D1013

Thomas L. ROBINSON and Laura A. Robinson, his wife, Appellants, v. Domenic ALBANESE, Appellee.

No. 92-2832.

District Court of Appeal of Florida,

Fifth District.

May 6, 1994.

Peter B. Heebner of Heebner, Baggett, Prechtl and Ellis, Daytona Beach, for appellants.

David A. Vukelja, of David A. Vukelja, P.A., Ormond Beach, for appellee.

W. SHARP, Judge.

Thomas and Laura Robinson appeal from a $34,270.00 final judgment against them in favor of Albanese, an individual who contracted with them to do remodeling work on their oceanfront house in Ormond Beach, Florida. The judgment included a small setoff of $4,430.00 for the Robinsons on their counterclaim for breach of contract and defective workmanship. After conducting a non-jury trial, the trial judge directed a verdict for the Robinsons on Count I (foreclosure of a mechanic's lien) because Albanese is not a licensed contractor and it found for Albanese on both Count II (breach of contract) and Count III (quantum meruit) for the same amount of damages ($38,700.00) less $4,430.00. We reverse because there is insufficient evidence to support the judgment.

The testimony was not in dispute on many key points. In November of 1989, the Robinsons entered into a partially oral and partially written (bid request) contract to have Albanese supervise various aspects of the remodeling job on their newly-purchased home. They knew he was not a licensed contractor, but he assured them he would "associate" a licensed general contractor to "pull the permits" and oversee the work generally.

The parties went over a list of jobs for which Albanese was responsible and priced each out. Albanese agreed to do them for a total of $26,800.00, which included all costs of materials, supplies, and labor, as well as his supervision. The interior of the 1500 square- foot house was essentially gutted, walls were moved, windows were moved and doors closed up, new cabinets and closets were built, new appliances were installed, and extensive tile work was done throughout the house. The Robinsons purchased the windows, doors, fixtures and major appliances directly through third parties except for some plumbing and electrical fixtures which they paid Albanese to buy for the job.

Albanese promised the job would be sufficiently complete by Christmas so they could move in. Unfortunately, Albanese was unable to keep his promise. The remodeling job ran into delays, and Albanese spent all of the Robinson's $26,800.00 long before the job was near completion. By that time, the Robinsons had asked Albanese to expand his tasks, such as installing the Anderson windows they purchased from Dunn Brothers.

On January 4, the Robinsons and Albanese conferenced the status of the job. The Robinsons testified they all agreed that the total of the extra work Albanese had been asked to do beyond the $26,800 brought the total owed him to $37,000.00. Albanese testified he never agreed to that total, but he accepted payment of that sum, and "refunded" them $1,551.00 as an overpayment.

After January 4, Albanese lost interest in the Robinsons' job. He moved the tools he purchased for the job (at their expense) to another job he had underway, and also told his laborers to leave the Robinsons' job. Albanese had a large amount of ceramic tile he purchased for the Robinsons' job moved to his own home. He also admitted he bought meals on the job for himself and laborers, paid two different general contractors "fees" totaling $2,656.00 and $2,700.00 and made other minor unauthorized expenditures of the Robinsons' funds. He was "fired" from the Robinsons' job on January 14 after the Robinsons realized he had abandoned their work, and that he had not paid various suppliers and subcontractors they had paid Albanese to handle.

Subsequently, Albanese filed a claim of lien for $47,000.00. He testified much of his claim was for his own personal labor ($15,900.00), although he admitted he never told the Robinsons he intended to charge anything for his own time on the job. That was clearly understood by the parties as having been included in the original price of $26,800.00 for the original remodeling task. As other tasks were added later, Albanese gave the Robinsons set prices for each job, which did not include his own time and labor. However, he did not inform the Robinsons of this fact.

Two expert witnesses testified at the trial. Weinberg, a general contractor, testified for Albanese. He visited the Robinsons' house some months after they had brought in other laborers and subcontractors and paid $150,000 to complete the remodelling. He made a list of the work Albanese was supposed to have done on the job. He estimated he would have bid Albanese's job at $76,534.00, including overhead and profit. His costs would have been $49,780.00. He thought the house looked "presentable" and "nice."

Alexander testified for the Robinsons. He was accepted as an "expert witness." He is a licensed general contractor, a certified building inspector, and is knowledgeable about the Southern Building Code and the standards for local construction and the Volusia County Building Code. He inspected the Robinsons' home in June of 1990, and found a gross number of building and code defects, extremely poor workmanship throughout, and even then, substantial incompletion of the project. ¹ None of this testimony was rebutted. He concluded that it would take $5,500.00 to complete Albanese's unfinished jobs and $23,663.00 to redo and repair the defective work and bring necessary items up to Code.

Albanese's attorney pointed out that Alexander had not seen the project right after Albanese had left it, and perhaps other workmen had been responsible for the defective work he saw in June of 1990. However, the Robinsons made a videotape of their house in January and February of 1990, right after Albanese left the job. The tape vividly demonstrates all the defects and problems discussed by Alexander and attributes them all to Albanese or laborers under his supervision and direction.

At the end of the trial, Albanese argued he was entitled to recover under a theory of contract as well as quantum meruit, a total of $76,534.00 (Weinberg's estimated bid price for the completed job), less $37,800.00 already paid him by the Robinsons. In essence, that is what the trial judge...