Third District Court of Appeal
State of Florida
Opinion filed December 19, 2018.
Not final until disposition of timely filed motion for rehearing.
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No. 3D16-2523
Lower Tribunal No. 15-13914
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Westchester Fire Insurance Company, LLC,
Appellant,
vs.
Kesoki Painting LLC,
Appellee.
An appeal from the Circuit Court for Miami-Dade County, Barbara Areces,
Judge.
Eaton & Wolk, PL, and Douglas F. Eaton, for appellant.
Taylor Espino Vega & Touron, P.A., and Daniel R. Vega and Vanessa A.
Van Cleaf, for appellee.
Before SUAREZ, FERNANDEZ, and LUCK, JJ.
SUAREZ, J.
Appellant Westchester Fire Insurance Company, LLC (Lee Construction
Group, Inc.’s surety) appeals from a final judgment, following a jury trial, entered
in favor of Kesoki Painting, LLC. Because we find that Westchester was not
entitled to a directed verdict, we affirm.
BACKGROUND
This case involves a dispute as to the scope of work required under a
Subcontract Agreement (the “Agreement”). In March 2014, Lee Construction
Group, Inc., the Contractor, entered into the Agreement with Kesoki, the
Subcontractor, to perform painting and waterproofing work for the Miami-Dade
County Overtown Transit Village. The dispute arises from the work required to
waterproof windows. Specifically, the work involved cutting window gaskets1 and
applying a sealant to prevent leaks between the window glass and the frame.
The controlling specifications did not include instructions to cut the gaskets
at an angle. However, the County determined that instead of trimming the gaskets
level with the frame before applying the sealant, it wanted the gaskets cut at a 45
degree angle. Luis Enriquez, Lee’s president, requested a written directive from
the project manager after explaining that cutting the gaskets at a 45 degree angle
deviated from the specifications and would be more time consuming and costly.2
1 A gasket is a rubber seal inside the perimeter of the window frame that holds the
glass in place.
2 Enriquez was also concerned that cutting the gaskets at a 45 degree angle would
impede the windows’ structural integrity: “Cutting [the gaskets] level I have no
problem doing so because it is listed in the scope of work and if the glazing starts
getting loose on those windows in the future than [sic] at least I am covered
because it was on the scope to do so. The way it's being requested to do so now
leaves me exposed . . . . The pressures at 22 stories are much higher and at the end
of the day this will fall on me if I proceed without having this in writing if some
2
Based on written instructions from the County, Enriquez directed Kesoki to cut the
gaskets at 45 degrees. Enriquez acknowledged that complying with the County’s
instructions to cut the gaskets at an angle as opposed to flush was “a bit more
work” but suggested that Kesoki wait to submit a change order because the
additional cost could perhaps be offset by using a less expensive sealant.
Ultimately, the less expensive sealant was not used, and the anticipated
savings never materialized. Consequently, Kesoki submitted a change order to
Enriquez in the amount of $104,599.40 for the extra work associated with cutting
the gaskets at a 45 degree angle. Enriquez asked Kesoki to reduce the amount,
which Kesoki did, submitting a reduced change order in the amount of $95,169.40.
Enriquez signed the revised change order, added an additional fifteen percent
contractor markup, and submitted it to the County. The County rejected the
gasket-cutting change order “for the reason that it is within the scope of the
construction documents[.]”
Following the County’s rejection of its change order, Kesoki filed suit
against Westchester, Lee’s surety, alleging that Kesoki was entitled to recover for
the extra gasket-cutting work. After the lawsuit was filed, Charles Nyarko, the
project architect, rejected the change order in writing, finding that the gasket-
cutting work was a requirement under the Agreement’s specifications.3 The case
type of failing happens on these windows down the road.”
3 During cross-examination, however, Nyarko was asked why the specifications
did not state that the gaskets were to be cut at 45 degrees. He answered, “I didn’t
3
proceeded to a jury trial, and the jury returned a $91,904.00 verdict in favor of
Kesoki. Westchester sought judgment in accordance with a previously filed
motion for directed verdict, arguing that (1) Nyarko, the project architect, had the
final say as to scope of work disputes, and (2) Kesoki could only modify the
Agreement with respect to the gasket-cutting work with a signed writing from both
Lee and Kesoki. The trial court denied Westchester’s motion and entered final
judgment in favor of Kesoki. Westchester timely appealed.
ANALYSIS
We review the denial of Westchester’s motion for directed verdict de novo;
however, we view all record evidence and every inference based on that evidence
in a light most favorable to Kesoki, the non-moving party. See Maggolc, Inc. v.
Roberson,
116 So. 3d 556, 558 (Fla. 3d DCA 2013). We also review the trial
court’s interpretation of the Agreement de novo. Sunhouse Const., Inc. v. Amwest
Sur. Ins. Co.,
841 So. 2d 496, 498 (Fla. 3d DCA 2003).
Westchester first argues that it was entitled to a directed verdict because the
Agreement gives the project architect the final say over disputes that arise between
Lee and Kesoki regarding the scope of work, and the project architect determined
that the 45 degree cut was required by the specifications. The relevant dispute-
resolution provision provides as follows:
intend it to be cut at 45 degrees. That’s why it wasn’t written.”
4
2.5 If a dispute arises between the Contractor and the
Subcontractor regarding the Scope of Work, or in the
interpretation of the Contract Documents, and the parties
hereto do not promptly resolve that dispute, the decision
of the [Architect] shall be final.
We agree that this provision would require the parties to be bound by the
project architect’s determination as to the required scope of work in the event of a
dispute between Lee, the Contractor, and Kesoki, the Subcontractor. See James A.
Cummings, Inc. v. Young,
589 So. 2d 950, 954 (Fla. 3d DCA 1991) (“When
parties to a contract agree by its express terms to be bound to the determination
made by an architect, that agreement is binding upon the parties.”). But we reject
Westchester’s argument because unlike in Cummings, where “[s]everal disputes
arose” between the general contractor and subcontractor, the evidence in this case,
viewed in a light most favorable to Kesoki, establishes that there was no dispute
between Lee and Kesoki regarding the scope of the gasket-cutting work.
Before the work started, Lee’s president, Enriquez, repeatedly acknowledged
that cutting the gaskets at a 45 degree angle would be more work. Enriquez
explained to the project manager that the work was outside of the specifications
and would be more time consuming and costly. Further, he suggested that Kesoki
hold off on submitting a change order in case the cost of the extra work could be
offset by other savings. After the work had been completed, Enriquez accepted
and signed Kesoki’s revised change order. At trial, Enriquez testified that when he
submitted the change order, both he and Kesoki believed that the gasket-cutting
5
work was extra work. Based on our review of the record, we conclude that there
was simply no dispute between Lee and Kesoki, so there was nothing for the
architect to resolve.
Westchester also argues that it was entitled to a directed verdict because
Kesoki failed to establish that it modified the Agreement. Westchester relies on
the following provision:
15.2 This Agreement represents the entire agreement and
understanding between Contractor and Sub Contractor
and supersedes all prior negotiations, representations or
agreements, either oral or written. This Agreement may
be amended only by an instrument in writing signed by
Contractor and Sub Contractor.
We reject this argument because the Agreement also contains a provision that
allows Lee to make additions to the Work without invalidating the Agreement:
10.7 CHANGES IN THE WORK The Contractor may
direct the Subcontractor, in writing, without invalidating
this Agreement, to make revisions, modifications and
additions to the Work. The Contract Sum and the
Contract Time would be adjusted accordingly. The
Subcontractor, prior to the commencement of such
added, changed or revised Work, shall submit promptly
to the Contractor written copies of any claim for
adjustment to the Contract Sum and Contract Time for
such revised Work in a manner consistent with this
Agreement and the Contract Documents.
Here, Lee did what the Agreement provided for by directing Kesoki, in writing, to
undertake the additional work of cutting the gaskets at a 45 degree angle. No
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modification of the Agreement was necessary because the Agreement itself already
allowed Lee to make such changes to the work.4
Because we find that there was no dispute between Lee and Kesoki for the
architect to resolve regarding the scope of work and the Agreement allowed Lee to
make additions to the work, we conclude that Westchester was not entitled to a
directed verdict, and we affirm the decision below.5
Affirmed.
ANY POST-OPINION MOTION MUST BE FILED WITHIN SEVEN
DAYS. A RESPONSE TO THE POST-OPINION MOTION MAY BE
FILED WITHIN FIVE DAYS THEREAFTER.
4 Moreover, the next section, 10.8, provides a means through which Kesoki could
submit a claim for additional cost.
5 Although the Agreement’s “pay after paid” clause was briefly mentioned during
oral argument, neither party raised any arguments with respect to this clause in
their briefs. We therefore decline to address any issues concerning the clause here.
7
