Collaborative Trial and Appellate Defense Team Secures Reversal in Broward County Construction Dispute

CSK Trial Team
Miami Partners George Truitt and Mitchell Rozen

CSK Appellate Counsel
Fort Lauderdale West Partner Michael Rosenberg

Case Summary
The case arose from the renovation and expansion of a 9,000 sq ft custom home in a private community in Broward County. Plaintiff, the owner hired Defendant, a general contractor and CSK’s client, to substantially renovate and expand the residence. With construction nearly complete, the residence was destroyed by fire shortly before the agreed substantial completion deadline.

The cause of the fire was heavily disputed throughout the litigation. Plaintiff contended that faulty wiring caused the fire, while Defendant maintained that the fire resulted from arson or a peril beyond Defendant’s reasonable control. Plaintiff asserted claims for breach of contract, negligence, and violations of the Florida Building Code, allegedly causing the fire and delayed completion.  Rather than seeking the cost to return the home to its pre-fire condition and complete the renovation, the Owner sued for reliance damages to restore it to the financial condition it was in before the general contract was formed, i.e. return of the construction costs and diminution in value of the property.  Contractor’s defenses included the impossibility of timely completion after the fire and the risk of loss was assumed by the owner in the general contract.

Defense Strategy and Verdict
During the jury charge conference, the CSK Defense Team requested that the verdict form include specific questions for the jury to determine which of five (5) alleged contract breaches Defendant committed, any damages caused by each breach, and whether Defendant’s performance was excused because Plaintiff bore the risk-of-loss under the contact and timely completion became impossible given the extensive fire damage and limited site access during the State Fire Marshall investigation

Although the trial court provided a combined instruction on the risk of loss and impossibility defenses, it declined to include questions for the jury to identify the specific contract breaches, the damages flowing from each breach, whether repair of the fire damage and completion of the renovation by the pre-fire deadline was excused as impossible, or a risk assumed by Plaintiff.

At trial, the jury found in favor of Defendant on the negligence claim and further determined that no building code violations caused Plaintiff’s damages. However, the jury returned a verdict against Defendant on an unspecified breach of contract and awarded Plaintiff $928,850 in general damages with no allocation to return of funds or reduced value of the property.

The Defense Team preserved the issues for appeal and argued that, without a special verdict form questions, the jury had no meaningful way to determine whether Defendant’s performance was excused due to the fire loss, whether the owner assumed the risk of loss by fire under the circumstances, by and whether the damages awarded under the contract count were supported by competent evidence for the particular breaches committed.  

Appellate and Their Role
On appeal, Mr. Rosenberg argued that the trial court committed reversible error by refusing to include verdict form questions addressing Defendant’s impossibility and contractual risk of loss.  The Fourth District Court of Appeal agreed, holding that Defendant was entitled to have the jury determine whether the Contractor was excused from future performance because the Owner assumed the risk of a fire loss caused by arson or a peril beyond Defendant’s reasonable control and the fire damage and investigation made it impossible to repair the fire damage and complete the renovation by the pre-fire deadline.

The appellate court reversed the judgment against Defendant on the breach of contract claim, vacated the related attorney’s fee award, and remanded the matter for a new trial on the impossibility and risk of loss defenses, only.

Conclusion
This case highlights the importance of preserving key defenses for appeal by requesting special interrogatory verdict form that fully address critical defense theories presented to the jury. A defendant is entitled to a verdict form that requires the jury to evaluate each defense and avoids the two-issue rule on appeal.

The coordinated efforts between CSK’s trial and appellate teams positioned Defendant to successfully obtain reversal and secure a new trial on the breach of contract claim.

Special Thanks
Miami and Key West Associate Francesca Stein