In short: In Moscato Corp. v. Mutchnik Construction (3d DCA, May 14, 2025), a condo owner on Fisher Island claimed its contractor overbilled because change orders were never approved in writing as the contract required. The Third DCA affirmed judgment for the contractor. By asking for changes orally and paying the invoices, the owner waived the written-approval requirement.
The Facts
Moscato Corp. hired Mutchnik Construction Group under a cost-plus contract to renovate condominium units on Fisher Island in Miami-Dade.
The contract required written approval of change orders.
Disputes arose. Mutchnik recorded a construction lien. Moscato claimed it was overcharged; Mutchnik claimed Moscato breached by withholding payment on pay applications. Both sides sued, and the cases were consolidated.
The trial court granted final summary judgment for Mutchnik and awarded fees and costs. Moscato filed three appeals, which were consolidated.
The Decision
The Third District Court of Appeal affirmed in all respects (Case No. 3D24-0091, consolidated with 3D24-0787 and 3D24-0851; substituted written opinion May 14, 2025).
A written contract can be modified by the parties’ conduct, and a written change-order requirement can be waived by course of dealing. Here the owner orally requested changes, the contractor performed, and the owner paid the invoices.
The overbilling claim therefore failed. Fees were proper under the contract’s prevailing-party clause, and costs under § 57.041(1).
The court declined the contractor’s request for about $97,500 in accounting fees because it was raised for the first time on appeal.
The Law
Florida recognizes that parties may orally modify or waive written contract terms, including clauses requiring changes in writing, when they act on the change.
Chapter 713 governs construction liens. Prevailing-party fee clauses in construction contracts are enforceable, and § 57.041 awards costs to the prevailing party.
Lessons
- If you want the written change-order clause enforced, enforce it every time. Paying for unapproved changes can waive it.
- Contractors should still document every requested change in writing, with price and scope.
- Cost-plus contracts need clear billing records; disputes turn on documentation.
- Prevailing-party fee clauses raise the stakes of construction litigation for both sides.
Source: Opinion, Moscato Corp. v. Mutchnik Constr. Grp., Inc., No. 3D24-0091 (Fla. 3d DCA May 14, 2025)
Watch the Oral Argument
This is the recording of the oral argument, posted on the channel. What lawyers and judges say at argument is not the ruling; the decision is summarized above.
Change Orders Without Written Approval | Moscato Corp. v. Mutchnik Construction, 3D2024-0091
Go Deeper
- A Condo Developer’s Default Did Not Mean a Guarantee for Every Unit (Merco Group at Akoya v. General Computer Services)
- A Mid-Trial Jury Instruction Change and a Lost Condo Defect Case (Eloquence v. CDC Builders)
- Developer Parking and Storage Assignments Upheld: The Condo Association Loses (Aria on the Bay)
Frequently Asked Questions
Can a construction contract’s written change-order requirement be waived?
Yes. Moscato held the owner waived it by requesting changes orally, accepting the work and paying the invoices.
Can a Florida contract be modified orally?
Generally yes, when the parties agree and act on the modification, even if the contract requires changes in writing.
Who pays attorney fees in a construction dispute?
Usually whoever the contract’s prevailing-party clause names, plus statutory costs under § 57.041.
What should owners do when they want changes on a renovation?
Put each change, its scope and its price in writing before the work is done.
Talk to a Florida real estate litigation lawyer
Weidner Law, P.A. handles Florida real estate, landlord-tenant, condominium and property disputes from St. Petersburg. If you need a real estate litigation lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: the full Florida Statutes and court rules are on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
