Soriano v. Hunton, Shivers, Brady & Associates, 87-778

• Decision Date: 05 May 1988
• Docket Number: No. 87-778,87-778
• Citation: 524 So.2d 488,13 Fla. L. Weekly 1075
• Parties: 13 Fla. L. Weekly 1075 Enrique C. SORIANO, Appellant, v. HUNTON, SHIVERS, BRADY & ASSOCIATES, Appellees.
• Court: Florida District Court of Appeals

Page 488

524 So.2d 488

13 Fla. L. Weekly 1075

Enrique C. SORIANO, Appellant, v. HUNTON, SHIVERS, BRADY & ASSOCIATES, Appellees.

No. 87-778.

District Court of Appeal of Florida Fifth District.

May 5, 1988.

Ted R. Manry, III and Charles W. Pittman of MacFarlane, Ferguson, Allison & Kelly, Tampa, for appellant.

Ted R. Brown & Michael J. Sullivan of Godbold, Allen, Brown & Builder, P.A., Winter Park, for appellees.

DAUKSCH, Judge.

This is an appeal from a judgment in a contract case.

Barnett Bank hired appellees to design a bank building. Appellees, as the architects, hired appellant to assist in the design by providing structural designs. This was done. When the builder began construction and came to the point where the structural design was to be used he contacted the architects, appellees, and said the design was defective. Appellees then relayed that information to appellant. Appellant disagreed saying his design was not defective. Appellees obtained two other structural engineers who gave their opinion that the structural design by appellant was defective, thus agreeing with the builder that modifications to a portion of the building which had already been built were necessary and that other costs would be incurred in the strengthening of the building. In other words, the new structural design required tearing-out of some of the partially constructed building and shoring of the structure to be built. All of this amounted to a greater expense to the builder and thus the owner. The responsibility for the design was appellees'. Because appellees hired appellant to assist and that assistance was allegedly defective appellees sued appellant for breach of contract and indemnification.

Appellees alleged that they incurred a total cost of $56,291 to complete the modifications. Of this amount, the trial court disallowed $10,780 for modifications to the fifth floor and roof level deemed to be unnecessary and deducted $5,340 for appellant's recovery under its counterclaim. This left a total damage award of $40,171. Appellant contends on appeal that he is not responsible for those costs which would have necessarily been incurred and paid for by the owner had the modifications been a part of the original design. We agree.

Although appellees may have deemed the modifications necessary for the owner's protection, they were not authorized to act as the owner's agent by approving of or implementing such changes. By assuming the financial responsibility for these changes, appellees acted as volunteers. ¹ Rather than initially seeking the owner's approval or assessing the owner for the additional costs as they should have done, appellees chose to voluntarily step into the owner's shoes and act on the owner's behalf without the authority to do so. Appellees thereby forfeited their right to later assert any defenses which they would have had against the owner had the owner chosen to litigate the matter.

In those situations where a person officiously confers a benefit upon another, our supreme court, quoting from Restitution and Implied Contracts in American Jurisprudence Second Edition, adopted the following principle:

'The basic principle that a person who officiously confers a benefit upon another is not entitled to restitution therefor, and the general rule that a person who without mistake, coercion, or request has unconditionally conferred a benefit upon another is not entitled to restitution, except where the benefit was conferred under circumstances, making such action necessary for the...