Incident365 Florida, LLC, Appellant, vs. Ocean Pointe V Condominium Association, Inc., et al., Appellees.
Nos. 3D22-2239, 3D22-2240 & 3D22-2241
Third District Court of Appeal State of Florida
October 2, 2024
Not final until disposition of timely filed motion for rehearing.
Lower Tribunal Nos. 20-169-P, 20-226-P, 20-170-P
Ferencik, Libanoff, Brandt, Bustamante & Goldstein, P.A., and Ira Libanoff (Plantation); and Buchanan, Ingersoll, & Rooney PC, and Hala Sandridge (Tampa), for appellant.
Abrams Law Firm, P.A., and Ryan A. Abrams (Fort Lauderdale); Scott J. Edwards, P.A., and Scott J. Edwards (Boca Raton), for appellees.
Shannin Law Firm, P.A., and Nicholas A. Shannin (Orlando), for the Restoration Industry Association, as amicus curiae.
Before SCALES, GORDO and LOBREE, JJ.
In these appeals, the plaintiff below, Incident365 Florida, LLC (“Incident“), appeals from separate final summary judgments entered in favor of Ocean Pointe III Condominium Association, Ocean Pointe IV Condominium Association and Ocean Pointe V Condominium Association (collectively, “Associations“). We have jurisdiction.
I.
The underlying action stems from several Service Agreements (“Agreements“) that Incident, a disaster mitigation service company, entered into with each of the condominium associations following Hurricane Irma in 2017. Buildings and units within each condominium association sustained water intrusion during the storm. The Agreements listed seven specific “Disaster Recovery Tasks” that Incident would perform at the Associations’ buildings: (1) water damage mitigation; (2) general dehumidification; (3) structural dehumidification; (4) structural removal of affected substrates; (5) disposal of removed materials off property location; (6) anti-microbial
Following the execution of the Agreements, Incident began to perform work at the Associations’ buildings. The scope of work completed by Incident, which amounted to approximately $1.4 million, included extracting water by placing removable machines within the buildings; laying plastic sheeting; removing unsalvageable drywall, ceiling materials, flooring (carpets and vinyl plank tiles), cabinetry, and popcorn texture on ceilings; providing and operating equipment to dry out wet building materials and units, including industrial grade fans, blowers and dehumidifiers; applying anti-microbial solutions on surfaces for sanitation; and disposing of removed materials.
After the Associations failed to remit the remaining balance due of approximately $1 million under the Agreements, Incident filed suit against each condominium association. Incident‘s operative complaints asserted four claims: (1) breach of contract, (2) open account, (3) account stated, and (4) unjust enrichment. In their answers and affirmative defenses, the
The Associations filed amended motions for summary judgment based on their affirmative defenses of unlicensed contracting and unlicensed mold remediation, asserting that each defense serves as a complete bar to recovery. Specifically, the Associations argued that Incident engaged in significant interior demolition and other disaster mitigation work throughout the Associations’ buildings, “to repair and/or improve damage” without a contractor‘s license. As a result, the Associations argued Incident could not enforce the Agreements “in law or in equity” as an unlicensed contractor, as provided by
Incident argued in response that the work it completed does not require a contractor‘s license pursuant to
After conducting a hearing, the trial court entered final orders granting
The trial court noted that under
The trial court then addressed whether Incident is a “building contractor,” which is defined, in part, as follows:
“Building contractor” means . . . a contractor whose services are limited to remodeling, repair, or improvement of any size building if the services do not affect the structural members of the building.
Because certain words were not defined in the relevant statutes, the trial court relied on “dictionary definitions” to determine the plain and ordinary meaning of the words. In doing so, the trial court relied on the Merriam-Webster Dictionary for definitions of “remodel,” “repair” and “improve.” As reflected in the trial court‘s order, “remodel” was defined as “to alter the structure of“; “repair” was defined as “to restore by replacing a part or putting together what is torn or broken“; and “improve” was defined as “to enhance in value or quality: make better” and “to increase the value of (land or property) by making it more useful for humans.”
After considering the dictionary definitions, the trial court concluded that each of the “Disaster Recovery Tasks” referenced in the Agreements and all services actually performed by Incident constitute a “repair” or an “improvement.” In doing so, the trial court noted that the “primary function of Incident‘s service proposal in this case is to make the property damaged by a natural disaster ‘better’ and ‘restore it to a sound or healthy state.‘” Further,
Here, the Court finds that a contractor‘s license was required for the scope of work to be performed under the Agreement[s], and the scope of work performed, and that Incident[]did not have the required license. The Court concludes that there is no genuine dispute of material fact and there is no issue requiring presentation to a jury related to whether Incident[] was engaged in unlicensed contracting, and that it is therefore, prohibited from enforcing its claims “in law or in equity.”
§ 489.128(1), Fla. Stat.
Following entry of the final summary judgments, Incident moved for rehearing, which the trial court denied. Incident‘s timely appeal followed.
II.
An appellate court reviews de novo the granting of summary judgment. See Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). “In performing this task, we must view the record and reasonable inferences in the light most favorable to . . . the nonmovant.”
III.
The issue for review in this appeal centers on the trial court‘s determination that all the contracted-for work and all the work Incident actually performed at the Associations’ buildings required a building contractor‘s license.
In addressing whether the “Disaster Recovery Tasks” and the work by Incident require a license, the definitions of “contractor” in
The Florida Legislature “deem[ed] it necessary in the interest of the public health, safety, and welfare to regulate the construction industry.”
“Contractor” means . . . the person who, for compensation, undertakes to, submits a bid to, or does himself or herself or by others construct, repair, alter, remodel, add to, demolish, subtract from, or improve any building or structure, including related improvements to real estate, for others or for resale to others; and whose job scope is substantially similar to the job scope described in one of the paragraphs of this subsection. . . .
(emphasis added).3 As recently recognized by the Sixth District Court of Appeal in Marlin Constr. Grp., LLC v. Bollinger, 49 Fla. L. Weekly D751 (Fla. 6th DCA Apr. 3, 2024), “[t]he semicolon in the above definition separates the two prongs that must be analyzed to determine if one meets the definition of ‘contractor.‘” Id. at *2; see also Sq 2901, LLC v. Complimenti, Inc., 323 So. 3d 804, 806 (Fla. 3d DCA 2021) (interpreting the definition of “contractor”
First, pursuant to
“Building contractor” means . . . a contractor whose services are limited to remodeling, repair, or improvement of any size building if the services do not affect the structural members of the building.
In Conage v. United States, 346 So. 3d 594 (Fla. 2022), the Florida Supreme Court made clear that in reviewing the plain meaning of words utilized in a statute, courts cannot do so in isolation. Instead, courts must consider “the specific context in which that language is used, and the broader context of the statute as a whole.” Id. at 598 (citation omitted). More specifically, the Court explained as follows:
The United States encourages us to use an approach that is often linked to a passage from our Court‘s decision in Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984) (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931)). There we said that “[w]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction.” In practice, following this maxim often leads the interpreter to focus on a disputed word or phrase in isolation; the maxim also leaves the interpreter in the dark about how to determine whether a particular word or phrase has a clear meaning.
We believe that the Holly principle is misleading and outdated. More recently our Court has said that judges must “exhaust ‘all the textual and structural clues‘” “that bear on the meaning of a disputed text. Alachua County v. Watson, 333 So. 3d 162, 169 (Fla. 2022) (quoting Niz-Chavez v. Garland, 593 U.S. 155, 160, 141 S.Ct. 1474, 1480, 209 L.Ed.2d 433 (2021)). That is because “[t]he plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that the language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997).
Viewed properly as rules of thumb or guides to interpretation, rather than as inflexible rules, the traditional canons of statutory interpretation can aid the interpretive process from beginning to end. . . . It would be a mistake to think that our law of statutory interpretation requires interpreters to make a threshold determination of whether a term has a “plain” or “clear” meaning in isolation, without considering the statutory context and without the aid of whatever canons might shed light on the interpretive issues in dispute.
Conage, 346 So. 3d at 598 (footnote omitted). See State v. Crose, 378 So. 3d 1217, 1234 (Fla. 2d DCA 2024) (stating that since the decision in Conage, the Florida Supreme Court‘s “marching orders for interpreting legislation have been clear: to derive the meaning of statutes, we are to look to the text
With these principles in mind, we address the trial court‘s determination that all the contracted-for work and all the work actually performed by Incident at the Associations’ buildings required a building contractor‘s license. In the order under review, the trial court focused on the words “remodel,” “repair” and “improve.” In doing so, the trial court relied on broad dictionary definitions of those terms in isolation, without considering “the
Here, we find these six contracted-for tasks are not tethered to the Associations’ buildings or structures, as contemplated by the statute. While these contracted-for tasks relate to the buildings and are to be performed within the buildings, they do not involve the physical buildings or structures themselves. When the statute is considered as a whole, it would be absurd to interpret it as requiring a building contractor‘s license to lay plastic
We also recognize the arguments raised in the amicus brief submitted by the Restoration Industry Association (“RIA“), an established trade association for the disaster remediation and cleaning industry. In its brief, RIA contends the trial court‘s broad interpretation of the statute would have a severe and draconian impact on the restoration industry not intended by the Legislature. Specifically, it would impose a barrier to entry—requiring a building contractor‘s license—for basic cleaning services or water extraction or mitigation activities, which is not textually supported by the plain language of the statute. We agree.
If we were to accept the trial court‘s ruling as to these six tasks and related services, practically any work performed for a homeowner for compensation would require a building contractor‘s license. For example, if a homeowner hired someone for compensation to clean their home, and during the cleaning process, the individual scrubbed the toilets and vacuumed and cleaned the floors, the first prong of
In this case, both parties provided competing interpretations of the services undertaken within this job scope. They also provided conflicting analysis on whether, in the industry, some of these services affected the structure of the building and whether these services fall within the definition of “building contractor” pursuant to the statute. Based on our independent review of the record, we conclude there are genuine issues of material fact as to whether the scope of work the parties have labeled “structural removal of [a]ffected substrates” and the removal of materials affixed to the buildings fall within the scope of work performed by a “building contractor,” thus requiring a building contractor‘s license. As such, these issues bar entry of
Reversed and remanded for further proceedings.
I concur in the opinion and write only to discuss severability of the parties’ disaster mitigation contracts, an important issue that remains unadjudicated in this case and appears to be one of first impression in Florida.6
In the challenged judgment, the trial court determined, as a matter of law, that each of the “Disaster Recovery Tasks” provided by Incident under the parties’ disaster mitigation contracts constituted a “repair” or an “improvement” to the Associations’ “building[s] or structure[s]” as contemplated by sections 489.105(3) and 489.105(3)(b) of the Florida
We have now reversed the trial court‘s legal determination as to all but one of those tasks, concluding that because these tasks are not sufficiently tethered to the Associations’ “building[s] or structure[s]” as contemplated by sections 489.105(3) and 489.105(3)(b), such work did not require Incident to possess a building contractor license. Because we have determined that a fact issue exists as to whether the remaining task—“structural removal of effected substrates“—requires licensure, the thorny issue of severability remains.8
On remand, for purely practical reasons, the trial court may wish to adjudicate the legal issue of severability before conducting proceedings on the fact issue we have identified in this opinion (i.e., whether the contracts’ “structural removal of effected substrates” task constitutes a “repair” or an “improvement” to the Associations’ “building[s] or structure[s]” as contemplated by sections 489.105(3) and 489.105(3)(b) so as to require a building contractor license), and any attendant fact issues that may derive therefrom. Indeed, the outcome of the trial court‘s severability determination might affect settlement negotiations, jury instructions and the verdict forms.