District Court of Appeal of Florida

Case no.: 5D2023-3395
Date filed: September 10, 2026

A Florida appellate court has ruled that, despite the finding that neither party breached the contract, a contractor may recover payment for performing change-order work. A dissenting opinion argued that the change order process was part of the body of the construction contract. Without a finding of breach, there could be no recovery for change order work.

Christopher and Joy Cates awarded a contract to Ken Sarbu Construction Co. Inc. to remove and replace the balconies on a luxury residence on Amelia Island. The contract contemplated an approximate ten-week performance period. It also included a process for mutually agreed changes to the work.

Six months after issuance of a building permit, the work was still not complete. This caused a breakdown in the relationship. The Cateses ordered Sarbu’s employees to stay off the property. The resulting litigation included reciprocal breach-of-contract claims.

After a bench trial, the Nassau County Superior Court found that neither party had met its burden of proof. In the words of the judge, it was a “dead tie.” Neither party was awarded damages for breach. But a bilateral change order, executed by both parties, was something different. Sarbu Construction was awarded payment for substantial performance of the change order work.

Both parties appealed the trial court decision, raising a number of issues. One such issue was the contractor’s entitlement to compensation for the change order work. The project owners argued that, in light of the finding that there was no breach of contract, the contractor was not entitled to damages. Those damages included compensation under the change order.

Two members of a three-judge panel of the Florida District Court of Appeal upheld the trial court’s award of payment under the change order. While the trial court had expressly found no breach of contract by the project owners, it had treated the bilateral change order as distinct from the contract: “As we read the record, the trial court found that the Cates breached their obligations under the change order.”

One judge dissented from this ruling. The contract authorized change orders and established a procedure for their implementation. A change order was issued under the contract and was part of it. The dissent noted that Sarbu Construction had not sued for quantum meruit or unjust enrichment. The contractor had sued for breach of contract, and there had been no finding of breach by the project owners.

“The trial court’s finding that neither party met their burden of proof means no breach was established, particularly when the main contract defined change orders as part of the overall contract. Sarbu Construction, which did not claim relief under a quantum meruit theory, was not entitled to damages without an explicit finding of breach of the change order.… Sarbu Construction attempts to assert that it is the ‘innocent party’ because the Cateses did not prove that it breached the contract. But Sarbu Construction likewise failed to prove that the Cateses breached the contract; therefore, neither party can be said to be the breaching party. The trial court’s award of damages to Sarbu Construction is thereby unsupportable.”

The dissenting opinion is far more persuasive. An executed bilateral change order, contemplated under the terms of the contract, should not be treated as an agreement separate from the contract. It is inconsistent to say that the project owners breached the change order but did not breach the contract.

Equitable claims, such as quantum meruit, sometimes seem redundant in a breach-of-contract dispute. A situation such as this, however, illustrates their usefulness.

Participants:
For the Cateses: Peter E. Nicandri; Jacksonville, Florida
For Ken Sarbu Construction: David H. Willis; Jacksonville Beach, Florida

Before: Judges Jay, Eisnaugle, and Makar

Opinions by: Judge Jay (majority) and Judge Makar (dissent)

Outcome: Contractor allowed recovery for change order work

Source: Please click here to read the complete opinion.