DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
JD DEVELOPMENT I, LLC,
Appellant,
v.
ICS CONTRACTORS, LLC,
Appellee.
No. 2D21-2759
September 30, 2022
Appeal from the Circuit Court for Collier County; Lauren L. Brodie,
Judge.
David P. Fraser of Holmes Fraser, P.A., Naples, for Appellant.
Joseph A. Davidow and Krithika S. Venugopal of Willis & Davidow,
LLC, Naples, for Appellee.
BLACK, Judge.
JD Development I, LLC, appeals from the final judgment
entered in favor of ICS Contractors, LLC, for breach of contract
following a jury trial. ICS Contractors asserted below that JD
Development had breached the parties' written contract—a bid for
the performance of site development work—by failing to pay several
invoices for work ICS Contractors had performed under the express
provisions of the bid. On appeal, JD Development contends that
because ICS Contractors failed to present any evidence establishing
that the work identified in the unpaid invoices was within the scope
of the bid, the trial court erred in denying its motion for directed
verdict.1 We agree and therefore reverse the final judgment. JD
Development raises several other issues on appeal, but because the
trial court's failure to grant the motion for directed verdict is
dispositive, we need not address those other issues.
1 JD Development uses the terms directed verdict and
involuntary dismissal interchangeably. While the law applicable to
motions for directed verdict and motions for involuntary dismissal
is largely the same, see Thompson v. Fla. Cemeteries, Inc.,
866 So.
2d 767, 769 (Fla. 2d DCA 2004) (citing Day v. Amini,
550 So. 2d
169, 171 (Fla. 2d DCA 1989)), when a case is tried before a jury, it
is appropriate for a party to seek a verdict in its favor rather than to
move for involuntary dismissal, see Tillman v. Baskin,
260 So. 2d
509, 510-11 (Fla. 1972); cf. George Anderson Training & Consulting,
Inc. v. Miller Bey Paralegal & Fin., LLC,
313 So. 3d 214, 216 (Fla. 2d
DCA 2021) (treating the directed verdict as an involuntary dismissal
since the case was not tried before a jury).
2
On March 5, 2015, ICS Contractors submitted a unit price bid
to JD Development for the performance of site development work in
Collier County on a project called Legacy Estates. The bid was
based on a site plan and two subsequent revisions to the site plan
created by an engineering firm. The bid is comprised of eight
categories of work plus a "Notes" section enumerating various work
activities that were not included in the bid price. On May 6, 2015,
JD Development accepted ICS Contractors' bid, and ICS
Contractors began work on the project. On January 9, 2016, after
ICS Contractors had completed three out of the eight categories of
work set forth in the bid, JD Development terminated ICS
Contractors from the project. Thereafter, ICS Contractors
submitted an account statement, dated August 31, 2016, to JD
Development reflecting a balance due to ICS Contractors in the
amount of $182,827.15 for work that had been performed on the
Legacy Estates project prior to ICS Contractors' termination.
According to account statement, JD Development failed to remit full
payment for several invoices that had been submitted by ICS
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Contractors: invoice 1682, invoice 1699 (partially paid), invoice
1704, and invoices 1720 through 1725.
On September 12, 2019, after JD Development failed to pay
ICS Contractors the outstanding balance set forth in the account
statement, ICS Contractors filed a complaint against JD
Development. The complaint was amended on March 10, 2020, and
included five counts: breach of contract, account stated, open
account, unjust enrichment, and quantum meruit. In the breach of
contract claim, ICS Contractors alleged that JD Development
breached the bid by failing to pay in full several invoices for work
ICS Contractors had performed pursuant to the express written
provisions of the bid. ICS Contractors sought $182,827.15 in
damages. The bid was attached to the amended complaint, as was
the account statement.2
A jury trial was held on July 27 and July 28, 2021. During
trial, ICS Contractors conceded that invoices 1682 and 1704 had
been paid by JD Development, leaving only invoice 1699 (to the
2 On May 26, 2020, JD Development filed its answer and
affirmative defenses. It also raised three counterclaims which are
not at issue in this appeal.
4
extent that a portion of it remained unpaid) and invoices 1720
through 1725 in dispute. As a result, the amount of damages
sought by ICS Contractors was reduced to $105,214.84.3
Jason Clark, president of ICS Contractors, testified at trial.
During direct examination he explained that ICS Contractors had
based its bid on the November 2014 site plan and two subsequent
revisions to the site plan—dated January 2015 and February 2015,
respectively. Although the site plan was revised several times after
the bid had been prepared by ICS Contractors in March 2015—
resulting in changes to the work to be completed by ICS
Contractors—a subsequent, amended, or revised contract was never
executed. As various work activities were completed on the project,
ICS Contractors would submit invoices to JD Development. The
account statement, which was admitted into evidence, reflected all
of the invoices submitted by ICS Contractors to JD Development for
the work ICS Contractors had completed on the Legacy Estates
project prior to its termination. All of the invoices reflected in the
3 It is noted that the sum of the balances due in the disputed
invoices is actually $105,213.95, not $105,214.84.
5
account statement—both paid and unpaid—were also admitted into
evidence. Each invoice includes a brief description of what it is for
under a heading titled "ACTIVITY."
Mr. Clark testified that the work activity identified in invoice
1699—crushing and removal of material followed by regrading—was
performed pursuant to a "conversation on 8-26-2015."4 Invoices
1720 through 1725 include charges for renting equipment; invoice
1720 also includes a charge for hourly labor. Mr. Clark stated that
the equipment was needed to perform additional work as a result of
revisions to the site plan. An email sent by Mr. Clark to a
representative of JD Development dated November 24, 2015, was
admitted into evidence. According to Mr. Clark, he sent the email
after Jim Drescher, the owner of JD Development, had requested
that "the grades be raised on the retention ponds and . . . the rear
berm." In the email, Mr. Clark confirmed that the additional work
requested by Mr. Drescher was "not contract work." Mr. Clark
explained that the work referenced in the email is reflected in the
4 Invoice 1699 states that the crushing, removal, and
regrading was done pursuant to a conversation that occurred on
August 28, 2015, not August 26, 2015.
6
November and December invoices, which would include invoices
1720 through 1723. No testimony was elicited during direct
examination connecting the work activities set forth in the disputed
invoices to any express provision of the bid.
During cross-examination, Mr. Clark conceded that while most
of the work activities referenced in the invoices that had been paid
by JD Development are reflected in the bid, the work activities
referenced in the unpaid invoices are not. According to Mr. Clark,
the work activities referenced in invoices 1720 through 1725 are
not reflected in any of the bid's eight categories of work because
those activities became necessary only after revisions—revisions
that postdated the bid—were made to the site plan. Mr. Clark
explained that ICS Contractors could not have included the work
activities reflected in these invoices in its bid since that work had
not been contemplated by the November 2014 site plan or the
January 2015 and February 2015 revisions to the site plan. In an
attempt to connect the work activities set forth in the disputed
invoices to the bid, Mr. Clark testified generally as follows: "[The
bid] says exclusion, unforeseen buried items, removal and
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replacement of unsuitable material is excluded. That would be
negotiated at the time if found—which is exactly what we did with
Mr. Drescher." The exclusions referenced by Mr. Clark are listed in
the "Notes" section of the bid, which states in part that the "Price
does not include: 1.) Testing, Survey Permits or Fees[;] 2.)
Unforeseen or buried items[;] 3.) Removal or replacement of
unsuitable materials [;] or 4.) Removal or replacement of existing
fence." Contrary to Mr. Clark's testimony, the bid does not state
that the parties would negotiate the price for any work activities
excluded from the bid. During redirect examination, Mr. Clark
testified generally about the exclusions listed in the "Notes" section
of the bid but did not expressly state that the work reflected in the
disputed invoices fell within the exclusions.
At the close of the evidence, JD Development moved for a
directed verdict on the breach of contract count.5 JD Development
5 JD Development also moved for directed verdict on the four
other counts of the amended complaint. The trial court denied JD
Development's motion for directed verdict on the open account,
unjust enrichment, and quantum meruit counts. However, the trial
court granted JD Development's motion for directed verdict on the
account stated count.
8
argued that ICS Contractors had pleaded a claim for breach of the
written bid—and not for breach of any other written or oral
agreement—but had failed to present any evidence establishing that
the work activities identified in the disputed invoices correlated to
any express provision of the bid. In response, ICS Contractors
argued that the invoiced work was contemplated by the exclusions
enumerated in the "Notes" section of the bid even though "it's not
expressly stated" in the bid. The motion for directed verdict on the
breach of contract count was denied.
ICS Contractors' claims for breach of contract, open account,
and unjust enrichment—also referred to as contract implied in
law—were submitted to the jury. Though quantum meruit—also
referred to as contract implied in fact—is a distinct cause of action
from unjust enrichment, see F.H. Paschen, S.N. Nielsen & Assocs.
LLC v. B&B Site Dev., Inc.,
311 So. 3d 39, 48 (Fla. 4th DCA 2021),
ICS Contractors agreed to the trial court instructing the jury on
only its claim for unjust enrichment/contract implied in law. The
jury returned a verdict in favor of ICS Contractors for breach of
contract and awarded ICS Contractors $105,214.84 in damages.
9
Thereafter, the trial court entered the final judgment in favor of ICS
Contractors in accord with the verdict. This appeal followed.
We review the trial court's ruling on JD Development's motion
for directed verdict de novo. See Geico Gen. Ins. v. Hoy,
136 So. 3d
647, 651 (Fla. 2d DCA 2013). In doing so, we apply the same test
that the trial court applied in ruling on JD Development's motion:
A motion for directed verdict should be granted only
where no view of the evidence, or inferences made
therefrom, could support a verdict for the nonmoving
party. In considering a motion for directed verdict, the
court must evaluate the testimony in the light most
favorable to the nonmoving party and every reasonable
inference deduced from the evidence must be indulged in
favor of the nonmoving party. If there are conflicts in the
evidence or different reasonable inferences that may be
drawn from the evidence, the issue is factual and should
be submitted to the jury.
Id. (quoting Sims v. Cristinzio,
898 So. 2d 1004, 1005 (Fla. 2d DCA
2005)). And so the trial court's denial of JD Development's motion
for directed verdict must stand "if any reasonable view of the
evidence could sustain a verdict in favor of" ICS Contractors. See
Meruelo v. Mark Andrew of Palm Beaches, LTD.,
12 So. 3d 247, 250
(Fla. 4th DCA 2009) (citing Amerifirst Fed. Sav. & Loan Ass'n v.
Dutch Realty, Inc.,
475 So. 2d 970, 971 (Fla. 4th DCA 1985)).
10
"An essential element of a claim for breach of contract is the
existence of a material breach of a contractual duty." F.H. Paschen,
311 So. 3d at 47. Here, ICS Contractors failed to present any
evidence establishing that by failing to pay the disputed invoices JD
Development had breached the bid—the only contract upon which
ICS Contractors had sued.
It is undisputed that none of the work activities set forth in the
unpaid invoices fell within the scope of the three work categories of
the bid actually completed by ICS Contractors prior to its
termination. Mr. Clark's testimony confirmed what is stated on
invoice 1699—that the work referenced in that invoice was
performed pursuant to a "conversation" that postdated the bid by
several months. Mr. Clark further testified that the work referenced
in invoices 1720 through 1725 was performed as a result of site
plan revisions that postdated the bid such that ICS Contractors
could not have possibly included those work activities in the bid.
Mr. Clark's testimony and his November 24, 2015, email further
established that the work referenced in the November and
December invoices—invoices 1720 through 1723—was "not contract
11
work." Finally, Mr. Clark's testimony that the work activities
referenced in the disputed invoices fell within the express
exclusions in the "Notes" section of the bid actually supports JD
Development's position: if the work activities referenced in the
disputed invoices are of the type that was expressly excluded from
the bid, then clearly the bid did not reflect an agreement as to the
performance of—and payment for—those work activities. Stated
differently, the bid did not require ICS Contractors to perform those
work activities and in turn it did not require JD Development to
compensate ICS Contractors for performing those work activities.
See JF & LN, LLC v. Royal Oldsmobile-GMC Trucks Co.,
292 So. 3d
500, 508-09 (Fla. 2d DCA 2020) (explaining that to prove a claim for
breach of contract, the plaintiff must establish in part that "the
defendant 'failed to do something essential which the contract
required [the defendant] to do' " (alteration in original) (quoting Fla.
Std. Jury Instr. (Contr. & Bus.) 416.4)). Whether the parties may
have orally agreed to the performance of those work activities or
whether a written document other than the bid reflects the parties'
agreement as to the performance of those work activities has no
12
bearing on whether the trial court properly denied the motion for
directed verdict on the breach of contract claim. ICS Contractors
pleaded a claim for breach of the written bid and proceeded under
that legal theory at trial. And since no reasonable view of the
evidence could sustain a verdict in favor of ICS Contractors on its
breach of contract claim—even when viewing testimony and
evidence in the light most favorable to ICS Contractors—we hold
that the trial court erred in denying JD Development's motion for
directed verdict with respect to this claim.
We therefore reverse the final judgment entered in favor of ICS
Contractors on its breach of contract claim and remand for entry of
a final judgment in favor of JD Development.
Reversed and remanded.
NORTHCUTT and KHOUZAM, JJ., Concur.
Opinion subject to revision prior to official publication.
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