Berman Construction & Development, Inc. v. Carnaval Home, LLC

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

         BERMAN CONSTRUCTION & DEVELOPMENT, INC.,
                        Appellant,

                                    v.

                     CARNAVAL HOME, LLC, et al.,
                            Appellees.

                            No. 4D2024-2174

                             [April 22, 2026]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Keathan Briscoe Frink, Judge; L.T. Case No.
062020CA002555AXXXCE.

  Michael A. Rosenberg, George Richard Truitt, Jr., and Mitchell Irving
Rozen of Cole, Scott & Kissane, P.A., Plantation, and Mark Boyle and
Thomas Evan Shepard of Boyle Leonard Anderson, P.A., Fort Myers, for
appellant.

  Jesús E. Cuza, Christopher Noel Bellows, and Annelise Del Rivero of
Holland & Knight LLP, Miami, for appellee.

SHERMAN, JAMES, Associate Judge.

   This case arises from a contract to perform renovations on residential
property. The property was destroyed by a fire of unknown origin while
the renovations were still in progress. The owner sued the contractor and
several subcontractors for damages caused by the fire, resulting in a
judgment for the owner. We are required to decide whether the trial court
erred in denying the contractor’s request to include an interrogatory
question on the verdict form asking whether the contractor should have
been excused from performance under the contract’s risk of loss provision
as alleged in an affirmative defense. For the reasons set forth below, we
find the trial court erred in denying the requested interrogatory question
and thus reverse the final judgment and remand for a new trial.
                              BACKGROUND

   Carnaval Home, LLC (“the owner”) hired Berman Construction (“the
contractor”) to renovate an existing, company-owned home. The contract
between the parties set a substantial completion deadline of September 4,
2019.

   The contract contained a risk of loss provision placing risk
predominantly on the owner:

      § 15.9 Owner shall bear the risk of increased labor and
      materials costs and material and labor shortages. Owner
      shall bear the risk of loss, costs and damage to the Work
      caused by natural disasters, vandalism, arson, insect
      infestation and perils beyond Contractor’s reasonable control.

   The contractor then hired several subcontractors to carry out various
aspects of the renovation, including an electrician and project supervisor.
On July 29, 2019, with the renovation ninety-percent complete, a fire
destroyed the house.

   The owner sued the contractor for breach of contract, negligence, and
violation of the Florida Building Code. The owner pursued its breach of
contract claim primarily under the theory that the contractor had failed to
deliver the renovated property by the substantial completion deadline,
though additional breaches were raised.

   At trial, the parties hotly contested the fire’s cause. The owner
presented evidence supporting its theory that faulty wiring in the attic
ignited the fire, which spread quickly and engulfed the rest of the home.
The contractor, in contrast, contended the fire was caused by arson or
another cause beyond its control.

   During the charge conference, the contractor requested an
interrogatory question on the verdict form regarding the risk of loss
provision as well as its other defenses of impossibility of performance and
frustration of purpose. After extensive discussion, the trial court granted
a directed verdict on the impossibility of performance and frustration of
purpose defenses, finding that the express risk of loss provision foreclosed
the availability of those equitable defenses. The trial court also denied the
contractor’s request to include a risk of loss question on the verdict form.



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   The verdict form submitted to the jury contained questions related to
the claims for breach of contract, negligence, and building code violations,
respectively. As to the breach of contract claim, the standard form used
by the court asked:

      1.a. Did [the owner] do all, or substantially all, of the
      essential things which the contract required it to do?

      1.b. Was [the owner] excused from having to do all, or
      substantially all, of the essential things which the contract
      required it to do?

      2. Did [the contractor] fail to do something essential which
      the contract required it to do?

      3. Was [the owner] damaged by that failure?

   The jury found the contractor was not negligent but had violated the
building code. However, the jury also found the contractor’s violations did
not cause the owner’s damages. Finally, the jury found that the contractor
breached the contract and awarded the owner $928,850.00.

   The trial court denied the contractor’s post-trial motions and granted
the owner’s motion for attorneys’ fees, finding the owner had prevailed on
the significant issues.

                                ANALYSIS

   The trial court correctly denied the contractor’s post-trial motion
          for directed verdict on the breach of contract claim.

   We review the denial of a motion for directed verdict de novo. See
Wheeler v. City of Fort Lauderdale, 367 So. 3d 525, 527 (Fla. 4th DCA
2023). Absent legal error, the trial court’s denial of a motion for directed
verdict must be upheld if competent, substantial evidence supports the
verdict for the non-movant. See State Dep’t of Child. & Fam. Servs. v.
Amora, 944 So. 2d 431, 435 (Fla. 4th DCA 2006).

   The contractor contends a directed verdict was warranted because the
owner did not present any evidence establishing the contractor was
directly responsible for the fire. Without detailing all the evidence, this
claim is undermined by a brief review of the record below.




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    At trial, the owner presented testimony showing that the fire occurred
on the day when the electrical work was completed and power was restored
to the interior of the house for the first time since construction began
approximately ten months earlier. Throughout that time, the home was
in the exclusive control of the contractor and its subcontractors. The
owner also presented testimony from the carpenter, who was on the project
that day, that the lights in the kitchen and family room went out while he
was at the property between 5:00 p.m. and 8:00 p.m. This was
corroborated by the owner’s principal, Luis Ormo, who testified that when
he arrived at the home at 9:00 p.m. that evening, the kitchen and family
room lights were off. Ormo further testified that he attempted to turn on
all of the lights, but some of them did not work. Finally, the owner
presented expert testimony that the fire likely originated in the attic and
was not the result of arson.

    The contractor disputed the above evidence and offered its own
evidence to the contrary. The contractor also advanced its theory that the
fire was the result of arson. This included testimony that traces of gasoline
were detected after the fire, evidence of unusual burn patterns on the first
floor consistent with the presence of an accelerant, heat deformation on
the bottom of the door frames, and expert opinion that the fire had multiple
points of origin. The contractor also established the fire had engulfed the
house and was emanating from the roof just twenty minutes after the
owner had left the property. The contractor attempted to persuade the
jury that the fire, absent arson, could not have so fully permeated the
structure within that short period of time. The contractor also argued to
the jury that the electrician and Ormo had dealings apart from and in
violation of the contract, suggesting that some of the electrician’s conduct
was beyond the contractor’s control.

    The contractor directs our attention to what it contends are
contradictory findings among the three causes of action. Specifically, the
contractor argues that because the jury found the contractor was not
negligent, and that its building code violations did not cause any damage,
the jury necessarily found that the contractor was not responsible for the
fire and was, therefore, excused from meeting the substantial completion
deadline. These determinations are not necessarily irreconcilable, but
even if they were, what the contractor describes is an inconsistency in the
verdict. See Coba v. Tricam Indus., Inc., 164 So. 3d 637, 643 (Fla. 2015)
(“[A]n inconsistent verdict is defined as when two definite findings of fact
material to the judgment are mutually exclusive.”); Crawford v. DiMicco,
216 So. 2d 769, 771 (Fla. 4th DCA 1968) (“Where the findings of a jury’s
verdict in two or more respects are findings with respect to a definite fact


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material to the judgment such that both cannot be true and therefore
stand at the same time, they are in fatal conflict.”).

   The appellate remedy for an inconsistency, if preserved, is a new trial,
not a directed verdict. See Coba, 164 So. 3d at 648-49 (recognizing that
“the remedy [for an inconsistent verdict] is not to enter a judgment but to
order a new trial so a new jury can make the necessary findings to resolve
the case”). Regardless, we need not decide whether the verdict was truly
inconsistent because the contractor did not raise the issue before the jury
was discharged, and the contractor does not seek a new trial on that basis,
only a directed verdict, which is an inappropriate remedy.

   The trial court erred in denying the contractor’s request for a
   special interrogatory on the verdict form regarding the
   contractor’s unresolved affirmative defense related to the risk of
   loss provision.

   As noted above, the fire’s cause was the major issue in the case.
Regarding the breach of contract claim, the owner’s theory focused
primarily on the contractor’s failure to deliver the renovated property by
the substantial completion deadline. In response, the contractor asserted
impossibility as an affirmative defense, coupled with an argument that
section 15.9 of the contract placed the risk of loss for fire on the owner. 1
At trial, the contractor moved the court to include an interrogatory on the
verdict form asking the jury whether the contractor was excused from
performance pursuant to one of its defenses.

    We hold that the trial court abused its discretion in denying the
contractor’s request for a special interrogatory on the contractor’s
unresolved affirmative defense arising from section 15.9. We have
previously explained that “[w]here interrogatory verdict forms are used, the
verdict should include questions on the plaintiff’s claims and the
affirmative defenses.” See First Nat’l Bank of Lake Park v. Gay, 694 So. 2d
784, 788 (Fla. 4th DCA 1997) (emphasis omitted). “Otherwise, the jury
may not understand that the affirmative defenses must be considered in
answering the questions.” Id. By submitting the verdict form to the jury
without a question asking whether the contractor was excused from

1 We affirm the directed verdicts on the impossibility and frustration of purpose

defenses. See Vereit Real Est., L.P. v. Fitness Int’l, LLC, 365 So. 3d 442, 449 (Fla.
3d DCA 2023) (recognizing that where an “agreement provides that a party
assumes the risk that a future event may prevent the party from performing a
contractual obligation, then the equitable defenses are unavailing in an action
alleging the party’s breach for non-performance”).

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performance under the risk of loss provision, the court left unresolved the
major question in the case.

   We recognize the contractor greatly complicated the trial court’s job by
submitting a proposed verdict form totaling eleven pages before ultimately
narrowing its request over the course of trial. However, the contractor
correctly insisted that the jury should have been allowed to determine
whether it was excused from performance under the risk of loss provision.
The contractor’s defense was particularly significant given the jury’s
findings that the contractor was not negligent and that its building code
violations did not cause the damage.

    The owner responds that the trial court correctly denied the request for
the interrogatory because the contractor had waived its demand for an
arson-specific instruction and because, under the owner’s interpretation
of the risk of loss provision, the contractor bore the risk of loss from all
non-arson induced fires. We find no such waiver occurred where the
contractor made an unequivocal request for an interrogatory on its
affirmative defense and was then assured by the trial court that neither
“plaintiff nor defendant counsel has waived any issues that you’ve raised.”
Moreover, the record shows the contractor rightfully did not want to limit
the question to arson-specific fires, given section 15.9’s broader scope.

   Relying on the canon of expressio unius est exclusio alterius, the owner
argues that by expressly identifying arson as a peril for which the owner
bore the risk of loss, the contract placed the risk of loss for all non-arson
originated fires on the contractor. As a result, according to the owner, the
contractor’s rejection of an arson-specific inquiry additionally renders the
contractor’s request moot. We conclude this is an incorrect application of
the canon.

   Expressio unius est exclusio alterius (also known as the negative-
implication canon) is a principle of contract interpretation by which the
reader can infer that “the [express] mention of one thing implies the
exclusion of another.” See Gabriji, LLC v. Hollywood E., LLC, 304 So. 3d
346, 351 (Fla. 4th DCA 2020) (quoting Brown v. State, 263 So. 3d 48, 51
(Fla. 4th DCA 2018)). “The doctrine properly applies only when . . . the
thing specified . . . can reasonably be thought to be an expression of all
that shares in the grant or prohibition involved.” Antonin Scalia & Bryan
A. Garner, Reading Law: The Interpretation of Legal Texts § 10, at 107
(2012) (citing Roland Burrows, Interpretation of Documents 67 (1943) and
Henry Campbell Black, Handbook on Construction and Interpretation of the
Laws 219 (2d ed. 1911)).


                                     6
   While expressio unius is a commonly used tool of construction, “it must
be applied with great caution, since its application depends so much on
context.” Id. Not every positive statement of rights or obligations within a
text carries a discernable, enforceable negative implication. 2

    We are persuaded that the owner misapplies the canon to section 15.9.
Nothing in the provision signals limiting or constrictive language. On the
contrary, section 15.9’s final clause—“and perils beyond Contractor’s
reasonable control”—is expansive, approximating a catchall. Where the
text “contains a broad catchall provision at the end of a list of specific
items,” expressio unius cannot be applied without rendering the catchall
mere surplusage. See WPB Residents for Integrity in Gov’t, Inc. v. Materio,
284 So. 3d 555, 563 (Fla. 4th DCA 2019) (Gross, J., concurring specially)
(citing P.D. v. Dep’t of Child. & Fams., 866 So. 2d 100, 102 (Fla. 1st DCA
2004) (“[A] court may not generally ignore or delete words used by the
Legislature in a statutory provision . . .”)). When read as a whole, section
15.9 places the risk of loss on the owner for all perils “beyond Contractor’s
reasonable control” including, for example “natural disasters, vandalism,
arson, [and] insect infestation.”

   The contractor was thus entitled to have the jury decide on the verdict
form whether the loss was caused by arson or a peril beyond the
contractor’s reasonable control, thereby excusing its performance under
the contract.

                                    Conclusion

   We reverse the final judgment for the owner, and remand for a new trial
consistent with this opinion. Accordingly, we also reverse the trial court’s
order denying the contractor’s motion for attorney’s fees, because
entitlement is dependent on the outcome of the new trial. We affirm on all
other issues without comment.

   Affirmed in part, reversed in part, and remanded with instructions.


2 Consider the U.S. Constitution.  The Ninth Amendment was included in the Bill
of Rights, at the very least, to prevent expansion of federal powers through
application of expressio unius. See U.S. Const. amend. IX (“The enumeration in
the Constitution, of certain rights, shall not be construed to deny or disparage
others retained by the people.”); Kurt T. Lash, The Lost Original Meaning of the
Ninth Amendment, 83 Tex. L. Rev. 331, 336 (2004) (recognizing the amendment
was necessary to prevent “latitudinarian interpretations”); Gibson v. Matthews,
926 F. 2d 532, 537 (6th Cir. 1991) (observing the Ninth Amendment was ratified
to preclude use of expressio unius in construing the Bill of Rights).

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KUNTZ, C.J., and MAY, J., concur.

                           *        *      *

   Not final until disposition of timely-filed motion for rehearing.




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