The subcontractor had obtained a $7,119.00 judgment in its favor for extra work it claimed to have been implicitly requested by the property owner, which was outside the scope of the subcontractor’s contract with the general contractor on the project.
Rhythm & Hues, LLC v. Nature’s Lawn Care Inc. d/b/a Nature’s Landscaping, arises from a dispute between a property owner and a subcontractor over payment for extra work that was discussed during a site meeting between the property owner, general contractor, and landscaping subcontractor. This is actually the second appellate decision to arise from this case, and you can click here to read our write up on the first appeal, which contains most of the relevant factual background.
In short though, following the above-referenced site meeting, the landscaping subcontractor performed additional work based on a drawing provided by the property owner. After completing its work, and being paid by the general contractor, it recorded a construction lien and sued the property owner seeking $7,119.00 for the extra work performed. After a non-jury trial, the trial court entered judgment in favor of the subcontractor in that amount plus interest.
The property owner appealed, arguing that 1) the existence of the express contract between the owner and general contractor precluded the “implied contract” asserted by the subcontractor, and (2) the subcontractor failed to establish it had exhausted all remedies against the general contractor and remained unpaid and that the owner had not already paid in full for the improvements.
On appeal, Florida’s Fourth District Court of Appeal recognized that generally an implied contract is barred where an express contract exists regarding the same subject matter. Notwithstanding that, the court noted that “Florida courts have “long recognized that an implied contract may arise out of an express contract where a contractor or subcontractor performs ‘extras' not covered by the original contract.” Here, the disputed testimony at trial included evidence that the property owner had indicated it would work directly with the subcontractor and pay the subcontractor directly for the additional landscaping. In rejecting the property owner’s first argument, the court distinguished these circumstances from those where recovery by a subcontractor is barred by the owner’s payment in full to the general contractor because the amount sought here arose from an implied contract directly between the owner and subcontractor, not the contract with the general contractor.
Regarding the property owner’s second argument, the appellate court noted that exhaustion of remedies and payment in full by the property owner only apply to contracts implied in law, not the contract implied in fact that was asserted by the subcontractor. Because the subcontractor had established a contract implied in fact directly with the property owner, it did not have to prove that the owner had been unjustly enriched by failing to pay the general contractor in full. Based on this, the appellate court affirmed the judgment in favor of the subcontractor.
As we pointed out in our original write up of this case, this is a great illustration of how even informal job site discussions can lead to informal agreements and implied contracts. Contractors and subcontractors should be careful to document proposed changes and to clarify responsibility for changes to the scope of work after such discussions. Further, this case illustrates how long the fight can last, even over relatively small amounts. The original lawsuit was filed in 2018 and the first appeal decided in late 2020. It then took until August 2023 for the subcontractor to make it through trial and a full appeal. At this point, the subcontractor still likely hasn’t been paid, and there likely remains a fight over attorneys’ fees. That may be the biggest cautionary tale for contractors and subcontractors.