Opinion
No. 2D99-998.
Opinion filed March 1, 2000.
Appeal from the Circuit Court for Hillsborough County; Edward H. Ward, Judge.
Lewis J. Conwell of Piper, Marbury, Rudnick Wolfe, Tampa, for Appellants.
Steven A. Royal of Mixon Hubbell, Tampa, for Appellee.
Appellants, Charles I. Cox and Patti C. McCann, challenge a final summary judgment entered in favor of appellee, Reed's Swimming Pools Service, Inc. We affirm in part and reverse in part.
Appellants owned residential property on which they contracted with a general contractor (Ken Franklin Homes) for a home to be built. Appellee contracted separately with appellants to construct a pool, spa, pool deck and screen enclosure for the home. Appellee filed a construction lien on appellants' property to secure payment for the work appellee performed.
Appellants sued Ken Franklin Homes and appellee for breach of contract, recission of contract and to discharge an improper construction lien. The general contractor, Ken Franklin Homes, is not a party to this appeal. Appellee counterclaimed against appellants to foreclose its lien. The trial judge entered summary judgment for appellee determining that appellee was a direct contractor with appellants and not a subcontractor to the general contractor and was entitled to enforce its lien for the amounts due under the pool contract. We affirm that portion of the summary judgment.
Appellee conceded at oral argument that there are factual issues remaining as to whether the pool contract was completely performed as required. Those remaining factual disputes involve the heater connections for the spa, the absence of recessed planters in the pool decking, and the dimensions of the pool decking. We reverse the summary judgment insofar as it determined the amounts due appellee under its contract with appellant. On remand, the disputed factual issues should be resolved and appellants afforded setoffs against the contract amount for any unperformed work required of appellee that was not excused by appellants.
Affirmed in part, reversed in part and remanded.
PATTERSON, C.J. and WHATLEY, J., Concur.