James A. Cummings, Inc. v. Young

589 So. 2d 950, 1991 WL 217850
CourtDistrict Court of Appeal of Florida
DecidedOctober 29, 1991
Docket89-1134
StatusPublished
Cited by6 cases

This text of 589 So. 2d 950 (James A. Cummings, Inc. v. Young) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
James A. Cummings, Inc. v. Young, 589 So. 2d 950, 1991 WL 217850 (Fla. Ct. App. 1991).

Opinion

589 So.2d 950 (1991)

JAMES A. CUMMINGS, INC., and Federal Insurance Company, Appellants,
v.
Bob YOUNG, Appellee.

No. 89-1134.

District Court of Appeal of Florida, Third District.

October 29, 1991.
Rehearing Denied January 3, 1992.

*951 Katz, Barron, Squitero & Faust and William C. Hearon, Miami, and Beth F. Jacobi, West Palm Beach, for appellants.

Catlin, Saxon, Tuttle and Evans and Brian L. Fink and H. James Catlin, Miami, for appellee.

Before HUBBART, COPE and GODERICH, JJ.

PER CURIAM.

The defendants, James A. Cummings, Inc. [Cummings] and Federal Insurance Company [FIC], appeal from a final judgment entered in favor of the plaintiff, Bob Young, Inc. [Young], in this action to recover monies allegedly due Young pursuant to a contractual agreement. We affirm, in part, reverse, in part, and reverse and remand, in part.

On April 1, 1985, Young, a subcontractor, entered into a subcontract agreement [hereinafter referred to as the contract] with Cummings, a general contractor, for the demolition, site work, paving, and installment of storm drain systems at Florida Power & Light Company's [FPL] Miami *952 district office building. The original amount of this contract was for $297,778.00. This amount was later increased to $319,950.00 as a result of several additions and deletions to the project. The contract provided that alterations were to be made only upon Cummings' written orders and that the decisions of the project's architect were to be binding on both Young and Cummings.[1] Under the contract, the architect had final authority to resolve disputes regarding whether tasks were already included within the contract, as well as the reasonableness of any request for extras.[2]

Several disputes arose between Cummings and Young regarding the tasks to be completed at the amount stipulated by the contract. One dispute arose when Cummings instructed Young to remove and relocate certain boulders pursuant to the contract. Despite similar instructions by the architect, Young refused to perform the job unless it received an order increasing the contract amount. Another dispute arose when Cummings accused Young of refusing to grade and fill the east entry to the plaza area of the project. Cummings contends that because of Young's failure to comply with the contract, it was compelled to employ third parties to complete the necessary work, incurring expenses totaling $18,651.00 ($15,159.00 to move boulders; $2,741.00 to grade sidewalks and curbs; and $751.00 to fill curbs). Cummings paid Young a total of $273,066.20 but refused to pay the balance. Cummings also refused to credit Young for additional expenses in the amount of $2,152.00 which Young allegedly incurred in filling and compacting two soakage pits located under the parking garage.

On June 20, 1986, Young filed a claim of lien in the amount of $51,713.53 against the property. On October 6, 1986, Young filed this action against Cummings and FPL[3] to foreclose its mechanic's lien. On October 30, 1986, Cummings filed a surety bond in the amount of $61,122.00, releasing Young's lien. Thereafter, Young filed an amended complaint adding Cummings' surety, FIC, as a defendant. The parties entered into a stipulation setting forth the facts and narrowing the amount in dispute to $20,936.00. This amount represented the $18,651.00 in expenses incurred by Cummings in relocating the boulders and in grading and filling the sidewalks and curbs, plus the $2,152.00 claimed by Young for its unanticipated costs in filling and compacting the two soakage pits, plus the $133.00 attributable to the leasing of certain *953 equipment.[4]

After a non-jury trial, the court found in Young's favor on all issues presented and entered final judgment awarding Young the undisputed sum of $28,232.78 plus the disputed sum of $20,936.00 for an award in the sum of $49,168.78. Additionally, the trial court awarded Young interest in the sum of $15,890.27. Cummings and FIC filed a motion for rehearing and this motion was denied. Thereafter, the trial court entered a final judgment awarding Young $44,000.00 in attorney's fees and costs. Cummings and FIC appeal these decisions.

THE DISPUTED ITEMS

The critical issue is whether the architect ruled on the parties' disputes as required by Article VIII of the contract between the parties. Cummings and FIC contend that the trial court erred in entering the judgment in favor of Young where the architect denied Young's requests for extras in accordance with the express, unambiguous and undisputed terms of the contract. Young, however, contends that the architect merely interpreted the master contract and plan, but did not expressly rule on the question whether the disputed work was already within the scope of the contract.

1. REMOVAL AND RELOCATION OF THE BOULDERS

First, we will examine Cummings' claim for a back charge in the amount of $15,159.00 for relocating the boulders in accordance with the landscaping plans. In accordance with Article VII of the contract, the architect was requested to interpret the plans as they related to the boulders. The architect wrote a letter to Cummings' project manager informing him that the relocation of the existing boulders to specific locations at the job site was referred to and contained in the original architectural drawings attached to the contract. In effect, the architect ruled that Young was obligated to put the boulders in their final locations. In spite of the architect's ruling, Young refused to relocate the boulders unless it was paid an extra for the work.

The trial court allowed testimony as to each party's interpretation of the meaning of paragraph 44 of the contract.[5] Young asserted that remove and relocate meant simply remove and stockpile the boulders at the commencement of the job in order to prepare the site for construction, while Cummings' interpretation would require Young to remove and stockpile the boulders at the commencement of the job and to return at the end of the job to place them in accordance with the landscaping plans. Cummings asserts that the trial court erred in admitting parol evidence when a clear and unambiguous contract exists which contains the parties' entire agreement. We agree. See Peeples Constr. Co. v. Escoe Green, Inc., 522 So.2d 493 (Fla. 1st DCA 1988).

The only issue the trial court should have considered was whether the architect ruled on the issue as required by Article VIII of the contract. The law on this issue is best summarized in material part in 2 Construction and Design Law § 11.7 (1984):

Construction projects frequently provide that, during the course of the project, disputes over the meaning of the contract documents, drawings and specifications will be decided by the architect. These provisions are usually treated like arbitration agreements and are upheld by the courts... .
As a general rule, the architect's interpretation of the contract will be adopted by the court absent a showing of fraud, bad faith or gross mistake on the part of the architect. The parties must, however, *954 have agreed in writing to grant the architect the authority to interpret their contract. The architect's decisions will be binding to the extent that they resolve matters within the grant of authority.

Id. at 80-81.

The law in Florida supports this statement.

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Bluebook (online)
589 So. 2d 950, 1991 WL 217850, Counsel Stack Legal Research, https://law.counselstack.com/opinion/james-a-cummings-inc-v-young-fladistctapp-1991.