Moscato Corp., Appellant, v. Mutchnik Construction Group, Inc., et al., Appellees. (2025)

We grant the motion for written opinion, withdraw our prior unelaborated opinion, and substitute the following in its place.

Appellant Moscato Corp. (“Moscato”) filed three separate appeals in this case. In case number 3D24-0091, Moscato challenges a final summary judgment entered against it; in case number 3D24-0787, Moscato challenges an order awarding attorneys’ fees and costs against it in favor of appellees, Mutchnik Construction Group, Inc. and Mark Mutchnik (together, “Mutchnik”); and in case number 3D24-0851, Moscato challenges the trial court's amended final judgment incorporating the order awarding costs and fees to Mutchnik. On May 24, 2024, this Court consolidated the three appeals. We affirm in all respects.

Moscato and Mutchnik entered into a cost-plus construction contract whereby Mutchnik would perform construction work on Moscato's condominium units on Fisher Island in Miami Beach, Florida. Disputes arose from the construction project, resulting in Mutchnik filing a construction lien. Ultimately, both parties filed lawsuits, and the trial court consolidated the parties’ competing lawsuits. Essentially, Moscato alleged that Mutchnik had overcharged it, while Mutchnik alleged that Moscato had breached the parties’ contract by withholding payment for certain of Mutchnik's payment applications.

The parties filed competing summary judgment motions. The trial court, after conducting a hearing, entered a November 28, 2023 summary judgment order in favor of Mutchnik. Ultimately, the trial court entered an amended final judgment, which encompassed the challenged fee order, in favor of Mutchnik.

While Moscato makes several arguments on appeal, its principal argument is that the trial court erred in its summary judgment by holding that Mutchnik had not overbilled Moscato. The trial court concluded that, although the parties’ cost-plus contract required that all change orders be approved in writing, the summary judgment record established that this provision was routinely waived by the parties’ course of dealing: Moscato would orally request changes to the project; Mutchnik would perform those changes; and Moscato would pay the invoices for those changes. See Wiener v. Wiener, 343 So. 2d 1319, 1322 (Fla. 3d DCA 1977); Pro. Ins. Corp. v. Cahill, 90 So. 2d 916, 918 (Fla. 1956) (“A written contract or agreement may be altered or modified by an oral agreement if the latter has been accepted and acted upon by the parties in such manner as would work a fraud on either party to refuse to enforce it.”); see also Okeechobee Resorts L.L.C. v. EZ Cash Pawn, Inc., 145 So. 3d 989, 995 (Fla. 4th DCA 2014). On our de novo review of the record,² we find no error in the trial court's decision.

We also discern no error in the trial court's award to Mutchnik of attorneys’ fees per the parties’ contract and costs per section 57.041(1) of the Florida Statutes (2024) (“The party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment[.]”).³

Affirmed.

FOOTNOTES

2.   We review a summary judgment order de novo. Ibarra v. Ross Dress for Less, Inc., 350 So. 3d 465, 467 (Fla. 3d DCA 2022).

3.   While Mutchnik did not file a cross appeal of the fee award order or the trial court's amended final judgment including fees, it appears that, in its answer brief, Mutchnik seeks for this Court to award it an additional $97,529.90 for accounting fees that Mutchnik did not seek below. We decline Mutchnik's invitation in this regard.

PER CURIAM.