Robert M. Swedroe, Architect/Planners, AIA, PA v. First American Inv. Corp.

565 So. 2d 349, 1990 Fla. App. LEXIS 5066, 1990 WL 96416
CourtDistrict Court of Appeal of Florida
DecidedJuly 6, 1990
Docket88-3239
StatusPublished
Cited by8 cases

This text of 565 So. 2d 349 (Robert M. Swedroe, Architect/Planners, AIA, PA v. First American Inv. Corp.) 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
Robert M. Swedroe, Architect/Planners, AIA, PA v. First American Inv. Corp., 565 So. 2d 349, 1990 Fla. App. LEXIS 5066, 1990 WL 96416 (Fla. Ct. App. 1990).

Opinion

565 So.2d 349 (1990)

ROBERT M. SWEDROE, ARCHITECT/PLANNERS, A.I.A., P.A., Appellant,
v.
FIRST AMERICAN INVESTMENT CORPORATION, Appellee.

No. 88-3239.

District Court of Appeal of Florida, First District.

July 6, 1990.

*350 James D. Wing, of Fine, Jacobson, Schwartz, Nash, Block & England, Miami, for appellant.

Bruce A. McDonald and Edward P. Fleming, of McDonald, Fleming & Moorhead, Mary Esther, for appellee.

ON MOTION FOR REHEARING

JOANOS, Judge.

Upon consideration of the motion for rehearing and appellee's response, we grant the motion for rehearing, withdraw the opinion filed December 7, 1989, and substitute the following:

Robert M. Swedroe (Swedroe) appeals an order granting summary final judgment in favor of First American Investment Corporation (First American), on Swedroe's crossclaim seeking to foreclose an architect's lien. The issues raised are: (1) whether the services performed by Swedroe during the period from May to July 1987 were part of the original 1984 contract, so that the architect's lien was timely filed; and (2) whether First American has demonstrated a willful exaggeration of lien. We reverse and remand for further proceedings.

The Swedroe firm was the architect for the Surfside Condominium project in Destin. Commonwealth Mortgage Corporation was the mortgage lender on the project. On July 2, 1987, the developer, Beachfront Development I, Ltd. (Beachfront), gave a deed in lieu of foreclosure to First American, a subsidiary of Commonwealth. On October 20, 1987, Commonwealth filed a foreclosure suit against Beachfront and other lienors, including the Swedroe firm. On November 30, 1987, the Swedroe firm filed its answer and a crossclaim against First American "to establish and foreclose a mechanic's lien," alleging, among other things, that —

6. Plaintiff has performed all conditions precedent to the relief demanded and the last supervisory work was furnished by plaintiff on July 29, 1987.
7. For the plans and supervisory services there remains due and unpaid to plaintiff by owner and its predecessor in title the sum of $142,532.57. Owner and its predecessor have failed and refused to pay any part thereof despite due demand.

On April 18, 1988, the Swedroe firm moved for summary judgment against First American. Robert Swedroe's supporting *351 affidavit alleged that the Swedroe firm fulfilled all conditions precedent to establishing its claim under the mechanic's lien law, and was entitled to a judgment foreclosing its architect's lien. The affidavit further alleged that Swedroe's last work for the owner pursuant to the contract was furnished at the request of the owner on July 29, 1987, and that claim of lien was recorded timely on August 6, 1987.

The parties recorded their agreement by use of the standard American Institute of Architects (AIA) form agreement between owner and architect, with deletion of inapplicable sections. The original contract was dated October 24, 1983. Under the terms of the contract, the Swedroe firm was required to provide services through: (1) the construction documents phase; (2) certain aspects of construction administration through the construction phase; and (3) additional services upon request at rates of compensation specified in the agreement. Under the additional services section of the contract, the Swedroe firm was required to provide services "if authorized or confirmed by the Owner," to be paid for by the owner as provided in the agreement, in addition to the compensation for basic services. The additional services relevant to this appeal which the Swedroe firm was called upon to provide included:

1.7.10 ... interior design and other similar services required for or in connection with the selection, procurement or installation of furniture, furnishings and related equipment.
1.7.16 ... services made necessary by the default of the Contractor, or by major defects or deficiencies in the Work of the Contractor, or by failure of performance of either the Owner or Contractor under the Contract for Construction.
1.7.20 Preparing to serve or serving as an expert witness in connection with any public hearing, arbitration proceeding or legal proceeding.

Through July 29, 1987, the Swedroe firm did, in fact, provide various services under the additional services provision of the contract. One of the services rendered at the owner's request was a review of the mechanical and electrical work on the project. This review was performed by Swedroe's consulting engineers, for which the engineer consultants submitted a bill for $5,188.87, reflecting fifty-six hours of work. Also at the request of the owner, the Swedroe firm spent seventy hours preparing for and giving deposition testimony with regard to pending arbitration between the owner and its general contractor. This deposition testimony and the engineering inspection and report are the services that took place within the ninety day limitation period of recordation of the claim of lien.

The Swedroe firm routinely obtained written confirmations of the owner's directives for additional services, pursuant to the additional services provision of the contract. Twenty-nine of these written confirmations were entered into in connection with the Surfside project, after execution of the initial base contract. Seven of the confirmations related to interior design services pursuant to Section 1.7.10 of the contract, and were executed by the owner and Swedroe/YDE Design Associates, rather than the Swedroe architectural firm. The claim for design services represents $26,936.73 of the total $142,532.57 claim. During the course of the contract, the Swedroe firm credited the owner's account in the amount of $26,000.00, which represented a down payment on two condominium units at the project. Subsequently, the credit was cancelled, because the owner did not convey the condominiums.

On July 13, 1988, First American moved for summary judgment, alleging as grounds therefor that the depositions of officers of the Swedroe firm demonstrated that the claim of lien upon which the crossclaim was based was fraudulent, in that part of the sum claimed did not relate to any work done under Chapter 713, Florida Statutes. The motion further alleged that Swedroe had impermissibly consolidated sums allegedly due under numerous contracts, some of which were not with the Swedroe firm. In its supporting memorandum, First American contended that the contract and subsequent twenty-nine written confirmations for additional services constituted separate, independent contracts, *352 and that Swedroe was required to file separate claims of lien as to each contract that was partially unpaid. First American also urged that interior design services furnished by Swedroe/YDE could not be consolidated with the Swedroe lien claim, and that because the $26,000.00 credit for the failed condominium purchase constituted a novation, Swedroe could not claim a credit for this amount. In addition, First American asserted that the $26,000.00 credit and the $26,936.73 due for design services constituted a deliberate, willful exaggeration and fraud which negated the entire claim of lien.

In the order of December 8, 1988, the trial court awarded summary judgment in favor of First American, thereby dismissing Swedroe's claim of lien.

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565 So. 2d 349, 1990 Fla. App. LEXIS 5066, 1990 WL 96416, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robert-m-swedroe-architectplanners-aia-pa-v-first-american-inv-corp-fladistctapp-1990.