Construction Case Law Update - June 2015

FLORIDA STATE CASES

• Unlicensed Contracting by a Business – Whether a business is considered licensed turns on whether that business has a qualifying agent for the type of work to be performed as of the contract’s effective date, regardless of whether that business’s qualifying agent ultimately obtains the permits and supervises the construction. Homeowners sued their homebuilder for negligence by an unlicensed contractor, arguing that the builder was unlicensed because the building permits were pulled in the name of a qualifying agent no longer associated with the business and who had not supervised the construction. On appeal from a final judgment for the plaintiff, the Second District Court of Appeal reversed, finding that the trial court improperly looked to whether the “qualifying agent” had performed its supervisory duties as defined in Fla. Stat. § 489.105 to determine whether the construction company was licensed.  However, pursuant to § 489.128, whether an individual or business entity is licensed is determined at the time of contracting, and at that time it is unknown whether or by whom the qualifying agent’s duties will be performed. Instead, the First District Court of Appeal held that licensure is determined by whether the business had associated with it an individual licensed for the work at the time of the contract. Looking to the Department of Business and Professional Regulation’s records, the court noted that the builder had four qualifying agents, one of whom was properly licensed for the requisite work at all times material, and both he and the builder considered him to be the qualifying agent. The builder was therefore licensed. Taylor Morrison Services, Inc. v. Ecos, 2015 WL 3407929 (Fla. 1st DCA May 28, 2015) (Note: This opinion has not been released for publication in the permanent law reports. Until released, it is subject to revision or withdrawal.)
• Unlicensed Contracting; Malicious Prosecution; Attorney’s Fees under § 57.105 – Homeowners brought suit against a contractor and his construction company, alleging malicious prosecution, among other claims, based on the contractor’s suit against the homeowners for breach of contract and foreclosure of a construction lien despite the contractor’s lack of licensure and knowledge that his claims were therefore barred. When the plaintiffs’ sole witness failed to support their claim for malicious prosecution, the contractor moved for fees under Fla. Stat. § 57.105. After the jury found for the contractor on the malicious prosecution claim, the trial court concluded that the contractor was entitled to fees under § 57.105 because the plaintiffs’ claim was not supported by the material facts required to establish the claim. On appeal, the Second District Court reversed the judgment for fees against the plaintiffs’ attorney, finding that the plaintiffs had demonstrated legal malice through the contractor’s actions of filing and persisting in a suit based on claims barred by the contractor’s lack of licensure. Additionally, the trial court had permitted the plaintiffs to amend their pleadings to permit a claim for punitive damages, and denied the contractor’s summary judgment motion challenging plaintiffs’ damages based on attorney’s fees incurred in the county court case. The appellate court construed both of these facts as an indicator that the malicious prosecution claim did not lack material factual support, and held that the trial court had abused its discretion in reaching the opposite conclusion. MacAlister v. Bevis Const., Inc., 2015 WL 3404021 (Fla. 2d DCA May 27, 2015) (Note: This opinion has not been released for publication in the permanent law reports. Until released, it is subject to revision or withdrawal.)