01-004668
Stephan A. Humphrey vs.
Robert P. Ryan, Jr., D/B/A Personalized Homes Of Brevard, Inc., And Department Of Business And Professional Regulation, Construction Industry Licensing Board, Construction Industries Recovery Fund
Status: Closed
Recommended Order on Monday, April 29, 2002.
Recommended Order on Monday, April 29, 2002.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8STEPHAN A. HUMPHREY, )
12)
13Petitioner, )
15)
16vs. ) Case No. 01 - 4668
23)
24ROBERT P. RYAN, JR., d/b/a )
30PERSONALIZED HOMES OF BREVARD, )
35INC., AND DEPARTMENT OF )
40BUSINESS AND PROFESSIONAL )
44REGULATION, CONSTRUCTION )
47INDUSTRY LICENSING BOA RD, )
52CONSTRUCTION INDUSTRIES )
55RECOVERY FUND, )
58)
59Respondents. )
61)
62RECOMMENDED ORDER
64A formal hearing was held in this case before Daniel M.
75Kilbride, Administrative Law Judge, Division of Administrative
82Hearings, on March 1, 2002, in Melbourne, Florida.
90APPEARANCES
91For Petitioner: Bruce M. Harris, Esquire
97Gray, Harris & Robinson
101Post Office Box 3068
105Orlando, Florida 32802
108For Respondent: Elise Matthes, Esquire
113Department of Business
116and Professional Regulation
1191940 North Monroe Street
123Tallahassee, Florida 323 99 - 1039
129For Respondent: Charles L. Curtis, Esquire
135Robert Ryan, Jr. Doumar, Curtis, Cross,
141Laystrom & Perloff
1441177 Southeast Third Avenue
148Fort Lauderdale, Florida 333 16
153STATEMENT OF THE ISSUES
157Whether Petitioner is eligible to recover from the
165Construction Industries Recovery Fund, and, if so, in what
174amount.
175PRELIMINARY STATEMENT
177Petitioner, Stephen A. Humphrey, applied for recovery from
185the Construction Industries R ecovery Fund (the "Fund") pursuant
195to the provisions of Section 489.141, Florida Statutes.
203Petitioner's request was denied by an Order dated April 24,
2131998. Petitioner filed a Notice of Appeal and a Request for a
225Formal Hearing. The case was transferred to the Division of
235Administrative Hearings ("DOAH"), and a hearing was scheduled
245before the undersigned Administrative Law Judge ("ALJ"). At the
256hearing, the parties announced that a settlement agreement had
265been reached and that there were no material i ssues of disputed
277fact for the ALJ to consider. In April 1999, the Construction
288Industry Licensing Board (the "Board") approved the settlement
297agreement. In September 2000, the Board entered a Final Order
307approving Petitioner's Claim. The Board approved payment of
315$25,000 to Petitioner from the Fund. Respondent, Robert P.
325Ryan, appealed this final agency decision to the Fourth District
335Court of Appeal. Respondent Ryan urged the appellate court to
345dismiss Petitioner's claim as to Respondent Ryan. The c ourt
355declined Respondent Ryan's invitation to dismiss the action, but
364remanded the matter for a formal DOAH hearing. The case was
375again transferred to DOAH and a formal hearing occurred on
385March 1, 2002.
388At the formal hearing, Petitioner testified in his own
397behalf and 15 exhibits were entered into evidence. Respondent
406Ryan presented the testimony of John Kingsley and offered
41516 exhibits, each of which were entered into evidence. The
425Board offered no exhibits or witnesses. A Transcript of the
435proceedi ngs was filed, on March 29, 2002. Petitioner and
445Respondent Ryan timely filed Proposed Recommended Orders. The
453Board has not filed proposals as of the date of this Order.
465Respondent Ryan's Motion for Entry of Recommended Order, filed
474April 22, 2002, is denied as moot.
481FINDINGS OF FACT
4841. Petitioner entered into a contract with "Personalized
492Homes" to build his home located in Brevard County, on
502February 7, 1993. Jack Powell signed the contract on behalf of
513Personalized Homes. This contract required s ubstantial
520completion on or before September 15, 1993.
5272. Respondent Ryan was the qualifying agent for
535Personalized Homes, Personalized Homes Corporation, Personalized
541Homes, Inc., and Personalized Homes of Brevard, Inc., during all
551times relevant hereto.
5543. Petitioner took the February 1993 Contract to the bank
564which approved a construction loan. Petitioner used a portion
573of the proceeds from the construction loan obtained in March
5831993 to buy the lot upon which his house was eventually built.
5954. Petit ioner could not have obtained the construction
604loan or purchased the lot upon which he built his home without
616the use of the February 1993 Contract.
6235. Petitioner had architectural plans drawn up in
631February/March 1993, after the February 1993 Contract wa s
640signed.
6416. Petitioner recorded in the official records of Brevard
650County a Notice of Commencement of the construction of a home in
662March 1993. The Notice of Commencement was for the plans drawn
673up for the house after the February 1993 Contract was si gned.
685No actual construction was begun under the original plans.
6947. The initial plans were rejected and new plans were
704prepared in the summer of 1993. Petitioner sought bids from
714several contractors but settled on Personalized Homes to
722complete the proj ect.
7268. Petitioner and Personalized Homes, Inc., entered into
734another written document relating to the construction of
742Petitioner's home which was dated September 5, 1993. Jack
751Powell and John Kingsley signed the September 5 Contract on
761behalf of Persona lized Homes, Inc.
7679. An application for a building permit for the
776construction of Petitioner's house was filed on September 28,
7851993, and construction commenced.
78910. Problems developed from the construction of
796Petitioner's house which led to Petitioner f iling a civil action
807in C ircuit C ourt in Brevard County against persons and entities,
819including Personalized Homes of Brevard, Inc., but not including
828Respondent Ryan.
83011. On August 6, 1996, Petitioner filed an Amended
839Complaint against Jack Powell, John Kingsley, Personalized
846Homes, Inc., and Personalized Homes of Brevard, Inc., but not
856including Respondent Ryan. The Defendants each filed answers
864and affirmative defenses stating that the February 7 Contract
873was for financing purposes only and that the Se ptember 5
884Contract was the applicable contract.
88912. On January 8, 1998, the parties to the litigation
899entered into a settlement agreement. Pursuant to the settlement
908agreement, Jack Powell, John Kingsley, Personalized Homes, Inc.,
916and Personalized Homes of Brevard, Inc., agreed to pay
925Petitioner $17,500. Paragraph 13 of the settlement agreement
934provides that Petitioner will not prosecute an administrative
942claim against Jack Powell, John Kingsley, and Personalized Homes
951of Brevard, Inc., including any cla ims with the Board. This
962covenant expressly does not prohibit any claim against
970Personalized Homes, Inc. Paragraph 13 further provides that
978Petitioner "will not institute, maintain, prosecute or continue
986to maintain or prosecute any claims against the li cense of
997qualifying agent for Personalized Homes, Inc., Robert Ryan, with
1006the Construction Industry Licensing Board, however Humphrey
1013shall not be prohibited from pursuing any claim with regard to
1024the Construction Industry Recovery Fund."
102913. While Respon dent Ryan was neither a named party in
1040Petitioner's prior civil action nor a signatory to the
1049settlement document effectuated therein, Respondent Ryan is
1056specifically mentioned in that document, and the document
1064specifically contemplates actions to be take n with regard to
1074Respondent Ryan and his license with the Board.
108214. On January 9, 1998, a final judgment was entered in
1093which the court found: Personalized Homes, Inc., and Petitioner
1102entered into the September 5 Contract; Respondent Ryan was the
1112qualif ying agent for Personalized Homes, Inc., during the
1121construction of Petitioner's home; Personalized Homes, Inc.,
1128commenced construction on or after September 5, 1993; the
1137construction was defective and performed in such a way that
1147Personalized Homes, Inc., knowingly violated applicable state
1154and local building codes; Petitioner suffered damages in the
1163amount of $96,041.75; and the February 7 Contract was not
1174performed, was cancelled before performance began, and is not
1183related to the September 5 Contract.
11891 5. However, in the prior civil action, Petitioner filed
1199pleadings with the court characterizing Petitioner's September
12061993 written document as a supplement to the February 1993
1216Contract.
121716. After the settlement of the civil action, Petitioner
1226filed a c laim with the Board in 1998 that sought payment of his
1240claim under Chapter 489, Florida Statutes, from the Fund based
1250upon Petitioner's unsatisfied judgment entered in the Circuit
1258Court action in Brevard County. A prerequisite for being paid a
1269claim from the Fund is to successfully obtain an order from the
1281Board. In Petitioner's claim that was filed with the Board,
1291Petitioner represented to the Board that the September 1993
1300written document is a supplement to the February 1993 Contract.
1310In the Board proc eeding in 1998, Petitioner's settlement was
1320made a part of that record.
132617. Petitioner's claim was heard and denied by order of
1336the Board, dated April 24, 1998. The Board rejected the claim
1347when it found that (1) Petitioner's contract upon which the
1357clai m is based was entered into in February 1993 and his
1369contract pre - dates the effective date (July 1993) of the
1380Recovery Statute under which his claim is governed, and
1389(2) Petitioner waived his claim against the Fund according to
1399the terms of his settlement in the prior judicial action.
140918. Petitioner requested a formal administrative
1415proceeding before DOAH relating to the Board's 1998 order.
1424Respondent Ryan was joined in that action which was, upon
1434Respondent Ryan's unopposed motion, abated and dismissed against
1442Respondent Ryan. No party in that action appealed the ALJ order
1453dismissing Respondent Ryan. The action was terminated by
1461administrative order in 2000 when the remaining parties advised
1470the ALJ that they had entered into a settlement agreement and
1481that there were no genuine issues of material fact and that
1492Petitioner was entitled to recover from the Fund. The Board
1502entered an order in 2000 reversing its 1998 order, adopted the
1513agreed settlement and entered an order approving Petitioner's
1521claim.
152219. Respondent Ryan appealed this final agency decision
1530and the Fourth District Court of Appeal reversed the order
1540entered by the Board in 2000 and remanded the case for an
1552evidentiary hearing.
155420. Respondent Ryan has filed motions seeking to dismiss
1563and abate this proceeding based upon the doctrines of the law of
1575the case and collateral estoppel. Those motions were denied
1584prior to the hearing and renewed at the formal hearing and again
1596are denied.
1598CONCLUSIONS OF LAW
160121. The Division of Administrative H earings has
1609jurisdiction of the parties and the subject matter of this
1619proceeding. Section 120.569 and 120.57(1), Florida Statutes.
162622. Section 489.141, Florida Statutes, provides in
1633pertinent part:
1635(1) Any person is eligible to seek
1642recovery form the Construction Industries
1647Recovery Fund after having made a claim and
1655exhausting the limits of any available bond,
1662cash bond, surety, guarantee, warranty,
1667letter or credit, or policy of insurance,
1674if:
1675(a) Such person has received final
1681judgment in a cou rt of competent
1688jurisdiction in this state in any action
1695wherein the cause of action was based on a
1704construction contract . . . where the
1711contract was executed . . . on or after
1720July 1, 1993 . . . .
172723. The applicable contract in this proceeding is the
1736Construction Agreement executed February 7, 1993, as
1743supplemented on September 5, 1993.
174824. Petitioner's arguments that the September 5, 1993,
1756document nullified the February 7, 1993, Contract or is a
1766separate contract from the February 7, 1993, Contracto r
1775Agreement are rejected.
177825. A prerequisite for being paid a claim by the Fund is
1790to successfully obtain an order from the Board. There is no
1801basis shown in this record to recommend changing the findings or
1812conclusions of the Board's April 24, 1998, ord er.
182126. The February 7, 1993, Contract makes Petitioner
1829ineligible to receive any recovery from the Fund under Section
1839489.141, Florida Statutes, since it was executed prior to
1848July 1, 1993.
1851RECOMMENDATION
1852Based upon the foregoing Findings of Fact and Co nclusions
1862of Law, it is
1866RECOMMENDED that Petitioner's claim be denied.
1872DONE AND ENTERED this 29th day of April, 2002, in
1882Tallahassee, Leon County, Florida.
1886___________________________________
1887DANIEL M. KILBRIDE
1890Administrative Law Judge
1893Division of Administ rative Hearings
1898The DeSoto Building
19011230 Apalachee Parkway
1904Tallahassee, Florida 32399 - 3060
1909(850) 488 - 9675 SUNCOM 278 - 9675
1917Fax Filing (850) 921 - 6847
1923www.doah.state.fl.us
1924Filed with the Clerk of the
1930Division of Administrative Hearings
1934this 29th day of Ap ril, 2002.
1941COPIES FURNISHED :
1944Charles L. Curtis, Esquire
1948Doumar, Curtis, Cross, Laystrom & Perloff
19541177 Southeast Third Avenue
1958Fort Lauderdale, Florida 33316
1962Bruce M. Harris, Esquire
1966Gray, Harris & Robinson
1970Post Office Box 3068
1974Orlando, Florida 32802
1977Elise Matthes, Esquire
1980Department of Business
1983and Professional Regulation
19861940 North Monroe Street
1990Tallahassee, Florida 32399 - 1039
1995Suzanne Lee, Executive Director
1999Construction Industry Licensing Board
2003Department of Business and
2007Professional Regulatio n
2010Northwood Centre
20121940 North Monroe Street
2016Tallahassee, Florida 32399 - 0792
2021Hardy L. Roberts, III, General Counsel
2027Department of Business and
2031Professional Regulation
2033Northwood Centre
20351940 North Monroe Street
2039Tallahassee, Florida 32399 - 2202
2044NOTICE O F RIGHT TO SUBMIT EXCEPTIONS
2051All parties have the right to submit written exceptions within
206115 days from the date of this Recommended Order. Any exceptions
2072to this Recommended Order should be filed with the agency that
2083will issue the Final Order in this case.
- Date
- Proceedings
- PDF:
- Date: 04/30/2002
- Proceedings: Stephan Humphrey`s Response to Ryan`s Motion for Entry of Recommended Order (filed via facsimile).
- PDF:
- Date: 04/29/2002
- Proceedings: Recommended Order cover letter identifying hearing record referred to the Agency sent out.
- PDF:
- Date: 04/29/2002
- Proceedings: Recommended Order issued (hearing held March 1, 2002) CASE CLOSED.
- Date: 03/29/2002
- Proceedings: Transcript of Proceedings filed.
- Date: 03/01/2002
- Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
- PDF:
- Date: 02/25/2002
- Proceedings: Motion to Strike Respondent Ryan`s Motion for Judicial Notice and Notice to Produce filed by Board.
- PDF:
- Date: 02/25/2002
- Proceedings: Response to Order of Pre-Hearing instructions (filed by Petitioner via facsimile).
- PDF:
- Date: 02/25/2002
- Proceedings: Notice to Respondent Agencies to Produce Documents at Formal Administrative Hearing filed by Respondent Ryan.
- PDF:
- Date: 02/25/2002
- Proceedings: Notice to Petitioner to Produce Documents at Formal Administrative Hearing filed by Respondent Ryan.
- PDF:
- Date: 02/25/2002
- Proceedings: Motion for Administrative Law Judge to take "Judicial Notice" of Prior Administrative Case and File and Sections 489.141 and .143, Fla. Stat. (1993) filed by Respondent Ryan.
- PDF:
- Date: 02/21/2002
- Proceedings: Response to Initial Order of Pre-Hearing Instructions filed by Respondent.
- PDF:
- Date: 02/07/2002
- Proceedings: Reply to Resonse to Respondent`s Request for Disposition of Motions Previously Filed filed by C. Curtis
- PDF:
- Date: 02/04/2002
- Proceedings: Order issued (Respondent Ryan`s Motion to Dismiss and Motion for Summary Final Order is denied).
- PDF:
- Date: 02/04/2002
- Proceedings: Petitioner`s Response to Ryan`s Motion to Dismiss and Ryan`s Request for Disposition of Motions Previously Filed filed.
- PDF:
- Date: 01/24/2002
- Proceedings: Response to Respondent Ryan`s Request for Disposition of Motions Previously Filed filed.
- PDF:
- Date: 01/22/2002
- Proceedings: Request for Disposition of Motions Previously Filed filed by Respondent.
- PDF:
- Date: 01/03/2002
- Proceedings: Notice of Hearing issued (hearing set for March 1, 2002; 9:00 a.m.; Viera, FL).
- PDF:
- Date: 12/31/2001
- Proceedings: Motion to Dismiss and Motion for Summary Final Order filed by Respondent.
Case Information
- Judge:
- DANIEL M. KILBRIDE
- Date Filed:
- 12/03/2001
- Date Assignment:
- 12/17/2001
- Last Docket Entry:
- 07/15/2004
- Location:
- Viera, Florida
- District:
- Northern
- Agency:
- ADOPTED IN TOTO
Counsels
-
Charles L. Curtis, Esquire
Address of Record -
Bruce M Harris, Esquire
Address of Record -
Elise M Matthes, Esquire
Address of Record