J D DEVELOPMENT I, LLC v. ICS CONTRACTORS, LLC

• Court: District Court of Appeal of Florida
• Decided: September 30, 2022
• Docket: 21-2759
• Status: Published

Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

JD DEVELOPMENT I, LLC,

Appellant,

v.

ICS CONTRACTORS, LLC,

Appellee.

No. 2D21-2759

September 30, 2022

Appeal from the Circuit Court for Collier County; Lauren L. Brodie, Judge.

David P. Fraser of Holmes Fraser, P.A., Naples, for Appellant.

Joseph A. Davidow and Krithika S. Venugopal of Willis & Davidow, LLC, Naples, for Appellee.

BLACK, Judge.

JD Development I, LLC, appeals from the final judgment

entered in favor of ICS Contractors, LLC, for breach of contract

following a jury trial. ICS Contractors asserted below that JD Development had breached the parties' written contract—a bid for

the performance of site development work—by failing to pay several

invoices for work ICS Contractors had performed under the express

provisions of the bid. On appeal, JD Development contends that

because ICS Contractors failed to present any evidence establishing

that the work identified in the unpaid invoices was within the scope

of the bid, the trial court erred in denying its motion for directed

verdict.1 We agree and therefore reverse the final judgment. JD

Development raises several other issues on appeal, but because the

trial court's failure to grant the motion for directed verdict is

dispositive, we need not address those other issues.

1 JD Development uses the terms directed verdict and involuntary dismissal interchangeably. While the law applicable to motions for directed verdict and motions for involuntary dismissal is largely the same, see Thompson v. Fla. Cemeteries, Inc., 866 So. 2d 767, 769 (Fla. 2d DCA 2004) (citing Day v. Amini, 550 So. 2d 169, 171 (Fla. 2d DCA 1989)), when a case is tried before a jury, it is appropriate for a party to seek a verdict in its favor rather than to move for involuntary dismissal, see Tillman v. Baskin, 260 So. 2d 509, 510-11 (Fla. 1972); cf. George Anderson Training & Consulting, Inc. v. Miller Bey Paralegal & Fin., LLC, 313 So. 3d 214, 216 (Fla. 2d DCA 2021) (treating the directed verdict as an involuntary dismissal since the case was not tried before a jury).

2 On March 5, 2015, ICS Contractors submitted a unit price bid

to JD Development for the performance of site development work in

Collier County on a project called Legacy Estates. The bid was

based on a site plan and two subsequent revisions to the site plan

created by an engineering firm. The bid is comprised of eight

categories of work plus a "Notes" section enumerating various work

activities that were not included in the bid price. On May 6, 2015,

JD Development accepted ICS Contractors' bid, and ICS

Contractors began work on the project. On January 9, 2016, after

ICS Contractors had completed three out of the eight categories of

work set forth in the bid, JD Development terminated ICS

Contractors from the project. Thereafter, ICS Contractors

submitted an account statement, dated August 31, 2016, to JD

Development reflecting a balance due to ICS Contractors in the

amount of $182,827.15 for work that had been performed on the

Legacy Estates project prior to ICS Contractors' termination.

According to account statement, JD Development failed to remit full

payment for several invoices that had been submitted by ICS

3 Contractors: invoice 1682, invoice 1699 (partially paid), invoice

1704, and invoices 1720 through 1725.

On September 12, 2019, after JD Development failed to pay

ICS Contractors the outstanding balance set forth in the account

statement, ICS Contractors filed a complaint against JD

Development. The complaint was amended on March 10, 2020, and

included five counts: breach of contract, account stated, open

account, unjust enrichment, and quantum meruit. In the breach of

contract claim, ICS Contractors alleged that JD Development

breached the bid by failing to pay in full several invoices for work

ICS Contractors had performed pursuant to the express written

provisions of the bid. ICS Contractors sought $182,827.15 in

damages. The bid was attached to the amended complaint, as was

the account statement.2

A jury trial was held on July 27 and July 28, 2021. During

trial, ICS Contractors conceded that invoices 1682 and 1704 had

been paid by JD Development, leaving only invoice 1699 (to the

2 On May 26, 2020, JD Development filed its answer and affirmative defenses. It also raised three counterclaims which are not at issue in this appeal.

4 extent that a portion of it remained unpaid) and invoices 1720

through 1725 in dispute. As a result, the amount of damages

sought by ICS Contractors was reduced to $105,214.84.3

Jason Clark, president of ICS Contractors, testified at trial.

During direct examination he explained that ICS Contractors had

based its bid on the November 2014 site plan and two subsequent

revisions to the site plan—dated January 2015 and February 2015,

respectively. Although the site plan was revised several times after

the bid had been prepared by ICS Contractors in March 2015—

resulting in changes to the work to be completed by ICS

Contractors—a subsequent, amended, or revised contract was never

executed. As various work activities were completed on the project,

ICS Contractors would submit invoices to JD Development. The

account statement, which was admitted into evidence, reflected all

of the invoices submitted by ICS Contractors to JD Development for

the work ICS Contractors had completed on the Legacy Estates

project prior to its termination. All of the invoices reflected in the

3 It is noted that the sum of the balances due in the disputed invoices is actually $105,213.95, not $105,214.84.

5 account statement—both paid and unpaid—were also admitted into

evidence. Each invoice includes a brief description of what it is for

under a heading titled "ACTIVITY."

Mr. Clark testified that the work activity identified in invoice

1699—crushing and removal of material followed by regrading—was

performed pursuant to a "conversation on 8-26-2015."4 Invoices

1720 through 1725 include charges for renting equipment; invoice

1720 also includes a charge for hourly labor. Mr. Clark stated that

the equipment was needed to perform additional work as a result of

revisions to the site plan. An email sent by Mr. Clark to a

representative of JD Development dated November 24, 2015, was

admitted into evidence. According to Mr. Clark, he sent the email

after Jim Drescher, the owner of JD Development, had requested

that "the grades be raised on the retention ponds and . . . the rear

berm." In the email, Mr. Clark confirmed that the additional work

requested by Mr. Drescher was "not contract work." Mr. Clark

explained that the work referenced in the email is reflected in the

4 Invoice 1699 states that the crushing, removal, and regrading was done pursuant to a conversation that occurred on August 28, 2015, not August 26, 2015.

6 November and December invoices, which would include invoices

1720 through 1723. No testimony was elicited during direct

examination connecting the work activities set forth in the disputed

invoices to any express provision of the bid.

During cross-examination, Mr. Clark conceded that while most

of the work activities referenced in the invoices that had been paid

by JD Development are reflected in the bid, the work activities

referenced in the unpaid invoices are not. According to Mr. Clark,

the work activities referenced in invoices 1720 through 1725 are

not reflected in any of the bid's eight categories of work because

those activities became necessary only after revisions—revisions

that postdated the bid—were made to the site plan. Mr. Clark

explained that ICS Contractors could not have included the work

activities reflected in these invoices in its bid since that work had

not been contemplated by the November 2014 site plan or the

January 2015 and February 2015 revisions to the site plan. In an

attempt to connect the work activities set forth in the disputed

invoices to the bid, Mr. Clark testified generally as follows: "[The

bid] says exclusion, unforeseen buried items, removal and

7 replacement of unsuitable material is excluded. That would be

negotiated at the time if found—which is exactly what we did with

Mr. Drescher." The exclusions referenced by Mr. Clark are listed in

the "Notes" section of the bid, which states in part that the "Price

does not include: 1.) Testing, Survey Permits or Fees[;] 2.)

Unforeseen or buried items[;] 3.) Removal or replacement of

unsuitable materials [;] or 4.) Removal or replacement of existing

fence." Contrary to Mr. Clark's testimony, the bid does not state

that the parties would negotiate the price for any work activities

excluded from the bid. During redirect examination, Mr. Clark

testified generally about the exclusions listed in the "Notes" section

of the bid but did not expressly state that the work reflected in the

disputed invoices fell within the exclusions.

At the close of the evidence, JD Development moved for a

directed verdict on the breach of contract count.5 JD Development

5 JD Development also moved for directed verdict on the four other counts of the amended complaint. The trial court denied JD Development's motion for directed verdict on the open account, unjust enrichment, and quantum meruit counts. However, the trial court granted JD Development's motion for directed verdict on the account stated count.

8 argued that ICS Contractors had pleaded a claim for breach of the

written bid—and not for breach of any other written or oral

agreement—but had failed to present any evidence establishing that

the work activities identified in the disputed invoices correlated to

any express provision of the bid. In response, ICS Contractors

argued that the invoiced work was contemplated by the exclusions

enumerated in the "Notes" section of the bid even though "it's not

expressly stated" in the bid. The motion for directed verdict on the

breach of contract count was denied.

ICS Contractors' claims for breach of contract, open account,

and unjust enrichment—also referred to as contract implied in

law—were submitted to the jury. Though quantum meruit—also

referred to as contract implied in fact—is a distinct cause of action

from unjust enrichment, see F.H. Paschen, S.N. Nielsen & Assocs.

LLC v. B&B Site Dev., Inc., 311 So. 3d 39, 48 (Fla. 4th DCA 2021),

ICS Contractors agreed to the trial court instructing the jury on

only its claim for unjust enrichment/contract implied in law. The

jury returned a verdict in favor of ICS Contractors for breach of

contract and awarded ICS Contractors $105,214.84 in damages.

9 Thereafter, the trial court entered the final judgment in favor of ICS

Contractors in accord with the verdict. This appeal followed.

We review the trial court's ruling on JD Development's motion

for directed verdict de novo. See Geico Gen. Ins. v. Hoy, 136 So. 3d

647, 651 (Fla. 2d DCA 2013). In doing so, we apply the same test

that the trial court applied in ruling on JD Development's motion:

A motion for directed verdict should be granted only where no view of the evidence, or inferences made therefrom, could support a verdict for the nonmoving party. In considering a motion for directed verdict, the court must evaluate the testimony in the light most favorable to the nonmoving party and every reasonable inference deduced from the evidence must be indulged in favor of the nonmoving party. If there are conflicts in the evidence or different reasonable inferences that may be drawn from the evidence, the issue is factual and should be submitted to the jury.

Id. (quoting Sims v. Cristinzio, 898 So. 2d 1004, 1005 (Fla. 2d DCA

2005)). And so the trial court's denial of JD Development's motion

for directed verdict must stand "if any reasonable view of the

evidence could sustain a verdict in favor of" ICS Contractors. See

Meruelo v. Mark Andrew of Palm Beaches, LTD., 12 So. 3d 247, 250

(Fla. 4th DCA 2009) (citing Amerifirst Fed. Sav. & Loan Ass'n v.

Dutch Realty, Inc., 475 So. 2d 970, 971 (Fla. 4th DCA 1985)).

10 "An essential element of a claim for breach of contract is the

existence of a material breach of a contractual duty." F.H. Paschen,

311 So. 3d at 47. Here, ICS Contractors failed to present any

evidence establishing that by failing to pay the disputed invoices JD

Development had breached the bid—the only contract upon which

ICS Contractors had sued.

It is undisputed that none of the work activities set forth in the

unpaid invoices fell within the scope of the three work categories of

the bid actually completed by ICS Contractors prior to its

termination. Mr. Clark's testimony confirmed what is stated on

invoice 1699—that the work referenced in that invoice was

performed pursuant to a "conversation" that postdated the bid by

several months. Mr. Clark further testified that the work referenced

in invoices 1720 through 1725 was performed as a result of site

plan revisions that postdated the bid such that ICS Contractors

could not have possibly included those work activities in the bid.

Mr. Clark's testimony and his November 24, 2015, email further

established that the work referenced in the November and

December invoices—invoices 1720 through 1723—was "not contract

11 work." Finally, Mr. Clark's testimony that the work activities

referenced in the disputed invoices fell within the express

exclusions in the "Notes" section of the bid actually supports JD

Development's position: if the work activities referenced in the

disputed invoices are of the type that was expressly excluded from

the bid, then clearly the bid did not reflect an agreement as to the

performance of—and payment for—those work activities. Stated

differently, the bid did not require ICS Contractors to perform those

work activities and in turn it did not require JD Development to

compensate ICS Contractors for performing those work activities.

See JF & LN, LLC v. Royal Oldsmobile-GMC Trucks Co., 292 So. 3d

500, 508-09 (Fla. 2d DCA 2020) (explaining that to prove a claim for

breach of contract, the plaintiff must establish in part that "the

defendant 'failed to do something essential which the contract

required [the defendant] to do' " (alteration in original) (quoting Fla.

Std. Jury Instr. (Contr. & Bus.) 416.4)). Whether the parties may

have orally agreed to the performance of those work activities or

whether a written document other than the bid reflects the parties'

agreement as to the performance of those work activities has no

12 bearing on whether the trial court properly denied the motion for

directed verdict on the breach of contract claim. ICS Contractors

pleaded a claim for breach of the written bid and proceeded under

that legal theory at trial. And since no reasonable view of the

evidence could sustain a verdict in favor of ICS Contractors on its

breach of contract claim—even when viewing testimony and

evidence in the light most favorable to ICS Contractors—we hold

that the trial court erred in denying JD Development's motion for

directed verdict with respect to this claim.

We therefore reverse the final judgment entered in favor of ICS

Contractors on its breach of contract claim and remand for entry of

a final judgment in favor of JD Development.

Reversed and remanded.

NORTHCUTT and KHOUZAM, JJ., Concur.

Opinion subject to revision prior to official publication.