Robinson v. Albanese, No. 92-2832

• Court: Court of Appeal of Florida (US)
• Writing for the Court: W. SHARP
• 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.
• Docket Number: No. 92-2832
• Decision Date: 06 May 1994

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.

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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-

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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...