Understanding Florida Contractor Disputes
Contractor disputes in Florida arise from a number of different sources, but there are a few common triggers. Some of the most prominent disputes range from a breach of contract to subpar work, project delays or payment issues. These disagreements can be exceedingly frustrating for anyone wanting to simply have their project completed on time and on budget. Whether you’re a homeowner, commercial property owner or contractor, knowing the most common types of contractor disputes can help you resolve an issue before it becomes more problematic. You may have a claim of breach of contract if the contractor doesn’t deliver on what they agreed to do under the terms of your contract. For instance, if you agree to pay the total cost of materials needed to complete the job, and they refuse to purchase materials or make excuses for why they haven’t yet purchased the materials, then you may have a breach of contract case. To prove your case, you’ll need to show that the contractor had an obligation under the contract to do certain things and that they failed to fulfill that obligation. Another common contractor dispute in Florida is substandard work. The contractor may have fallen short on the job, using poor materials or not following the plans or specifications laid out in the contract. Whatever the reason, the result is often subpar work which may fall below the minimum requirements of building codes. Here again, you’ll need to show that the contractor had an obligation to do something under the contract and that they failed to follow through . Certain projects take longer than expected. Sometimes delays are understandable, but sometimes the wait times are inexplicable and unacceptable. If the contractor fails to live up to the deadlines in the contract, then you may have a claim for a delay. Florida law talks about construction delays and, in most cases, defines a delay as when the project schedule is impacted by more than 21 consecutive days after the intended completion date in the contract. If a construction delay occurs, you should communicate that concern to the contractor in writing. They’re not required by law to fix the problem, but if they’re willing to do the work, then give them a reasonable amount of time to resolve the issue and get the work completed. Finally, payment disputes are another frequent source of conflict between contractors and their clients. Payment issues can take a number of different forms. For example, a client might refuse to pay because they’re unhappy with the quality of the work. On the other hand, the contractor might feel unappreciated or underpaid, and them may stop work on the job site until they receive final compensation. A payment dispute isn’t a clear-cut case of breaking the law. Both the client and the contractor have rights when it comes to paying for a completed job. This means it’s possible to have a claim against a builder who didn’t meet contractual obligations even if the business owner has already paid for the work.
When Suing a Contractor is a Good Idea
When it is necessary to sue a contractor in Florida is not a black and white threshold. There are numerous situations where a homeowner or commercial propert owner would be entitled to sue the contractor. However, in many cases, if a homeowner sues the contractor after only having given them an opportunity to resolve things, repair and/or remedy the issue, a court or jury will not award anything.
For most of the clients we represent, they will try to negotiate with the contractor, talk through the issues, find a resolution and do so at the home or property in question. After all, if your contractor has built your home, renovated your property, or repaired prior damage to your home, you would not necessarily want to only communicate with them through your attorneys. For every case we will litigate, I would estimate that we may negotiate back and forth with an owner, business, or private party approximately 5 to 10 times. And, it may go even further than that.
As noted above, there are a few different scenarios where you will want to seriously consider suing your residential or commercial contractor, subcontractor, or another party who was hired to perform work on your property. First, for our clients who have commercial properties, which could be an office building, strip mall, or other type of commercial space, if you have sustained damages exceeding $15,000.00, you will want to consult with a Florida construction attorney. Similarly, for a non-commercial residential project, you will want to consider the same if you have sustained damages exceeding $5,000.00.
Ultimately, it would be best to consult with an attorney so that you can determine what is in your best interests and whether litigation is warranted. In many cases, if the damages exceed the above noted amounts, it would seemingly be in your best interests to file suit against the contractor(s) involved.
Note, if you have an insurance claim and the problems at your home or office will be paid by insurance, your insurer will likely be doing their own investigation and you may not want to risk any claim being open. If you are trying to sue the contractor, but know the loss is covered by insurance, there is a chance the carrier will take over the litigation and pursue whatever they can from the contractor.
Preparing Evidence for Your Case
An entire case can hinge on the evidence you gather. As you prepare to sue a contractor in Florida, you should think about how to collect this evidence. Not only will the evidence help you to prove your case, it can also help to convince the contractor that it’s easier to settle than to fight. Most cases are settled before they go to court. These cases often settle according to how much evidence that either side has – settle with me, or we can fight in court and I have more evidence than you do.
When thinking about evidence for a construction case, you should consider three types of evidence: contract evidence, email evidence, and photographic evidence. Keep track of invoices, receipts, and other paperwork. If you have a written contract, supply it to your attorney. If you don’t have a written contract, you’ll generally be able to rely on oral contracts, which are a little harder to prove. You can also rely on estimates for the work provided, and the invoices that you paid.
If you are suing because work you paid for wasn’t done, then you will also want to be sure to keep copies of the cancelled checks, since this can be used to prove that you paid. It can be very helpful to show that you wrote a check directly to the subcontractor. Don’t forget to keep copies of your invoice payments to the contractor as well, even those that were made through escrow accounts.
Photographs can also be helpful. Take photographs of the progress of the construction, which ideally should correspond with actual milestone payments given to the contractor. Your attorney can also hire experts to come inspect the work performed, which requires an expert assessment of the work performed, and where it went wrong. An earlier blog discusses expert assessments in more detail.
Again, different types of evidence may be used for different types of cases.
Florida Statutes and Regulations
Florida has several laws and regulations that govern construction projects and contractor disputes. The Florida Construction Licensing Board, part of the Department of Business and Professional Regulation (DBPR), is responsible for regulating contractors in the state. In Florida, there are four main types of contracting licenses: general contractor, building contractor, residential contractor, and unlimited specialty contractor. Each of these licenses comes with different requirements and allows the holder to perform specific types of work.
In addition to licensing requirements, Florida has several consumer protection laws that apply to homeowners hiring contractors. The Florida Deceptive and Unfair Trade Practices Act (FDUTPA) prohibits businesses from engaging in deceptive or unfair practices, including false advertising, misrepresentation, and fraud. Contractors who engage in unfair or deceptive practices can be reported to the FDUTPA for investigation.
Florida law also requires construction contracts to be in writing for projects over $500. The written contract should outline the scope of work, the materials to be used, the estimated completion date, and the total price of the project.
If a contractor fails to perform under the contract, or if there are disputes over the work performed, the homeowner may have several legal options available to them. One option is to file a complaint with the DBPR to investigate the contractor for violations of state licensing laws or consumer protection statutes. Another option is to file a breach of contract lawsuit against the contractor to recoup damages for the failure to perform.
Florida also has a statute of limitations on construction-related claims. Under Florida Statutes § 95.11(3)(c), a party has four years from the date of a construction defect to bring a legal action. For other types of construction disputes, such as a breach of contract claim, the statute of limitations is five years, per Florida Statutes § 95.11(2)(b).
Suing a Contractor
More often than not, filing suit against a contractor is going to be the option you may have to take when all else fails. Many contractors are members of a residential development association and bound by its bylaws to arbitration and litigation. However, there comes a time when the value to undoing the shoddy work diminishes and you are left with no choice but to sue. Likewise, where a contractor is not associated with a residential association, you may be forced to file suit. There are two methods for filing suit in Florida state court. One, in County court, which is generally reserved for smaller claims not exceeding $8,000.00 and the other in Circuit court, generally for larger claims exceeding $8,000.00. Most residential and commercial construction lawsuits will be filed in Circuit court. Circuit court is more expensive because it has a higher filing fee and requires the legal assistance of an attorney. There are few self-help resources for pro se litigants (those who do not hire an attorney). Although the Courts like to see a lawyer, the law does not require it. Sometimes the Courts will assist those who request a form pro se complaint. Always be sure you comply with the rules of Civil Procedure when seeking self-help from the Court. It may save you a trip back to the clerk to obtain the necessary forms. Regardless of whether you are supposed to file suit in County or Circuit court, the ultimate goal is to file a document called the Complaint. You may later file other documents such as a Motion and/or Affidavit in Support of Default or Motion for Leave to file Amended Complaint, etc, but the Complaint is the document that sets the entire lawsuit(s) in motion. The Complaint outlines why you are suing the Contractor and what damages you are requesting as a result. It also outlines the restitution you are seeking. It must contain an allegation of jurisdiction and venue, usually stating it arises under "the laws of the State of Florida" or similar. After you have prepared your Complaint that explains the reasons you are suing, the manner in which they breached their contract with you, the description of the damages you are claiming (generally money) and what remedy you want the Court to provide (refund, out of pocket repairs, etc), you must file the Complaint with the Clerk of the Circuit court in the county where the property is located or the county where the contractor has its principal place of business. Make sure you have enough copies made of your Complaint (at least 2), and any other supporting documentation you wish to file with your Complaint. Also be sure to include a proposed order for Default in the event the defendant contractor fails to respond to your Complaint within 20 days. File the original with the Clerk, keep a copy for your records, and deliver the stamped copy by mail to the Defendant. Upon receipt of the Complaint, the Defendant Contractor must file a response. Normally, the Contractor files an Answer or Motion to Dismiss the Complaint. If it is an Answer, the Contractor will respond to each paragraph of your Complaint and assert any Defenses it may have. An Answer is essentially a denial or admission to each paragraph of your Complaint. A Motion to Dismiss is a response that goes right to the merits of the case and asks the Court to deny your lawsuit based on something Defective in the Complaint, like not explaining its basis for the Court’s jurisdiction. If the Contractor fails to file an Answer or Motion within 20 days after service of the Complaint, you may file a Request for Default. This will be accomplished by submitting the proposed Order for Default to the Court, along with an Affidavit in Support of Default. Once Default is entered, the next step is to file a Motion for Default Hearing in front of the Judge. Most Judges schedule Default hearings quickly, but there are some that do not. At the Default hearing, you will explain to the Judge the basis of your lawsuit. If successful, the Judge will enter a Final Judgment in your favor. The next step will be a Motion for Garnishment.
What to Anticipate in a Contractor Lawsuit
You’ve filed your lawsuit. Now what?
With a lawsuit formally filed against your contractor you have entered the territory of civil procedure. A "motion" refers to a request to the court that may or may not result in an order. The first type of motion you may face will likely be a dismissal motion. As a plaintiff you will be required to respond to this motion in writing, and the court will then decide whether or not there is a valid course of action present. If the court proceeds with the lawsuit the next stage entails filing an Answer with the court. This document essentially states that the contractor disputes or admits to every fact set forth in the complaint.
Next comes the discovery process. This is a discovery period during which all involved parties are required to exchange certain information. Each party must compile the information needed to support their case as well as reserve everything that may support the opposing party’s position. In other words, all documents that may prove or disprove the claims in the complaint must be revealed. This process must be completed within thirty days.
Discovery methods that may be used during this process include:
Regardless of which methods are used, each party is generally required to answer the questions within 30 days.
Once this stage is complete, a pretrial hearing will occur, which is an effort made by the judge to reach a settlement between the two parties without taking the matter to trial . This occurs before trial and with a third-party mediator that is hired by the court.
If a settlement is reached prior to trial, the judge will officiate the case and find in favor of the plaintiff or defendant. If a settlement is not reached, your lawyer will request a date for trial. This can take several weeks – or even longer depending on the court’s calendar. At this point you will enter into the trial phase of the case, which consists of the judge holding an "evidentiary hearing" to determine what the actual evidence is in the case. "Expert witnesses" will likely testify about any expert witness reports and the judge will make a ruling at this time.
Many cases settle during the discovery process, prior to trial. In fact, many are settled on the very last day before trial litigation. If your case is strong, and of the belief that the contractor will view you as an asset in an effort to avoid litigation, you will have the benefit of settling outside of court. If not, however, the judge will preside over the evidentiary hearing and make a ruling based on the evidence presented. If the reason for the lawsuit is solely financial, the judge may even arrange for a payment plan or court ordered payment schedule when issuing the judgment. While this is not always the case, it is possible.
Engaging a Lawyer for Your Lawsuit
A lawyer is a helpful ally to have on your side if you are pursuing a case against a contractor. Many people think they can handle the legal process without a lawyer’s help, but a Florida construction lawyer can guide you through the process more smoothly and effectively. He or she can help you navigate the various steps you need to take to sue a contractor. They can help you understand the potential challenges of your case and how to overcome them. If you are not familiar with the ins and outs of Florida construction law, your lawyer is invaluable in making sure you do not miss anything that could derail your case. An experienced lawyer can help you determine whether you should go after a settlement or take your case to trial. It is important to understand your options and work with your lawyer to make the best choices for your case. Not all lawyers are equally qualified to represent you and your case. When it comes to choosing a lawyer for your case against a contractor, keep these tips in mind: In the end, you want to hire someone who has experience handling exactly these types of cases. Specific expertise can mean the difference between success and failure in a complicated case.
Alternative Ways to Resolve Your Dispute
The use of alternative dispute resolution has been on the rise in recent decades, both in Florida and across the United States. Mediation and arbitration are the two primary methods involved in this increasing trend. While many people believe litigation is the only option for resolving a construction dispute, alternative resolution options can expedite the settlement process in many cases. One of the primary benefits of mediation is the fact that the process is confidential. It can keep disagreements out of the public eye and prevent them from being made a matter of public record. Litigation, by contrast, is almost always a matter of public record. Though the mediator guides the conversation, onus ultimately is on the parties to resolve their differences. They are free to choose the venue and can modify selection procedures if they wish. They also choose the language in which they communicate to accommodate all parties as necessary.
A mediated settlement proposal is a draft settlement agreement the mediator generates during the course of the mediation session. This document typically includes a summary of any essential points discussed, along with a preliminary agreement. Typically, the mediator emails the document to all parties within 24 hours, noting any areas where the parties have not yet reached agreement. Due to the time constraints of many cases, the mediator also may submit the proposal the judge or other decision-maker on behalf of the parties. The court generally accepts this document as binding unless mediation takes place after the jury’s verdict or the arbitrator’s award. In cases where the mediated settlement proposal leads to an agreement, the parties write the final agreement themselves. It is then submitted to the court or arbitrator for their review. The same rules of confidentiality do not apply in these circumstances, which can affect whether it becomes a public document.
The principal advantage of arbitration — and the primary reason most parties opt for it over litigation — is the chance to avoid litigation entirely. Parties can create binding contracts, which means resolving the dispute in one step and minimizing costs. Parties can agree to submit the final agreement to the arbitrator for review without having to undergo a court proceeding. As can be the case with mediation, arbitration exposes disputes to the court system: the award can be enforced through the courts, and a party could even use the arbitration process to have a judge enforce the arbitration agreement before it has been finished. The arbitrator works much like a judge, making fact findings, applying the law and issuing the final award. The process moves at a pace the parties can agree upon. Unlike the court system, there are no strict time limits for many arbitration proceedings. Though the process does not involve juries, parties can appeal. Their main arguments may involve: The arbitration agreement must be in writing and require arbitration should there be a dispute about its terms. This may include obligations about contract interpretation, claims arising from a contract or even tort claims arising from contract performance. A contract may require any dispute arising from the agreement to be resolved through arbitration, regardless of the type. If a decision requires further enforcement action such as payment, collection, real estate transfer, etc., you would submit the written award to the court. The court will rule in accordance with the paper findings unless you appeal.
How to Prevent Future Contractor Litigation
Homeowners and contractors can prevent many disputes by entering into comprehensive contract agreements delineating the payment schedule, materials to be used, and timeline for project completion. Establishing expectations at the onset of the repair or construction process is perhaps the most effective way to avoid disputes. Written agreements are more enforceable than handshakes, and if a dispute arises later, it will be much easier for each party to point to specific performance or non-performance in the contract itself rather than to a "verbal agreement."
When drafting contract provisions, minimize the amount of blank space left where either party could insert information at a later time without a witness or notary. Be very specific as to which materials and name brands of materials will be used, as well as where the materials will be coming from. For example, the contract should state that Mohawk carpeting will be used, and specifically name which color and model of Mohawk carpet will be used throughout the residence. Leaving out these types of details will often lead to disputes about who agreed to do what.
Establishing timelines for the completion of the project and for certain steps within the larger project can also help limit the scope of any disputes that arise. It is common to see estimated time frames in contracts , rather than strict start and end dates. Regardless of the terminology in your contract, however, be as specific as possible regarding the parties’ expectations. Also, remember that your timeline for completion may be subject to change later, so build in some flexibility to the process with suitable language in the contract.
With regard to effective communication, one rule of thumb is to put everything in writing. A homeowner-client of mine had a disagreement with her contractor about some missing tile work in her recently completed residence. The project was covered by a contract, but they had several verbal contracts ("side" agreements) after the fact. When the dispute arose, my client and her contractor had to explain each side agreement to a Judge who was forced to choose between two different explanations and versions of the agreements, especially given the lack of written documentation. It’s much better to have just one agreement that covers everything than a variety of different documents that can be misinterpreted. Although only some contract disputes with Florida contractors result in a lawsuit where a Judge must interpret the parties’ intent, it’s still a good idea to stick with one contract and avoid additional "side" agreements concerning the scope of your agreement.