CONSTRUCTION CONSULTING, INC. v. THE DISTRICT BOARD OF TRUSTEES OF BROWARD COLLEGE

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

CONSTRUCTION CONSULTING, INC.,

Appellant,

v.

THE DISTRICT BOARD OF TRUSTEES OF BROWARD COLLEGE,

Appellee.

No. 4D21-3104

[September 7, 2022]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit,

Broward County; Carlos A. Rodriguez, Judge; L.T. Case No. CACE16-

007456.

Kenneth D. Cooper, Fort Lauderdale, for appellant.

Joseph W. Jacquot, Jonathan K. Osborne, and Lawrence G. Horsburgh

of Gunster, Jacksonville, for appellee.

GROSS, J.

Construction Consulting, Inc. (“CCI”) appeals from a final judgment

entered in favor of the District Board of Trustees of Broward College (the

“College”) after the trial court granted the College’s motion for summary

judgment. This court has jurisdiction. 1 See Fla. R. App. P. 9.030(b)(1)(A).

1 We reject the College’s argument that, because CCI did not attach copies of

certain interlocutory orders to the notice of appeal, CCI failed to comply with

Florida Rule of Appellate Procedure 9.110(d) and waived any arguments relating

to these prior orders. The interlocutory orders at issue made various legal

rulings, including dismissing certain counts. Rule 9.110(d) states, in relevant

part, that “a conformed copy of the order or orders designated in the notice of

appeal shall be attached to the notice . . . .” Here, CCI attached a conformed copy

of the final judgment. This was sufficient to bring up for review all interlocutory

orders entered as a necessary step in the proceeding. See Auto Owners Ins. Co.

v. Hillsborough Cnty. Aviation Auth., 153 So. 2d 722, 724 (Fla. 1963) (“The appeal

from the final judgment brings up for review all interlocutory orders entered as a

necessary step in the proceeding.”).

This case arises out of a construction contract between CCI and the

College. The College offered a final payment to cover outstanding invoices.

CCI accepted the payment, thus barring its later claims under both the

common law doctrine of accord and satisfaction and a waiver clause in the

contract.

The Master Contract

The College and CCI were parties to a construction contract (the

“Master Contract”) dated May 23, 2012. The Master Contract refers to CCI

as the “Construction Manager” and to the District Board of Trustees of

Broward College as the “Owner.”

Article 14 of the Master Contract, entitled “Payment to Construction

Manager,” governs pay requests by CCI. Paragraph 14.4 provides that

“[p]ay requests shall be accompanied by documentation in support of

Subcontract Costs and Reimbursable Expenses, if any, as Architect or

Owner’s Representative may require.” Paragraph 14.4 also provides that

“[s]trict compliance with the requirements of this paragraph 14.4 shall be

a condition precedent to any payment, including Final Payment, under

this Agreement.”

Paragraph 14.5, entitled in part “Lien Releases,” states that CCI’s

“application for Final Payment shall be accompanied by final lien releases

and waivers of claim from [CCI] and all Subcontractors,” which “shall be a

condition precedent to Final Payment to [CCI].”

Paragraph 14.8, entitled “Payment at Substantial Completion,” governs

payment due “after execution of the Certificate of Substantial Completion”:

14.8 Payment at Substantial Completion. Subject to the

limitations of the GMP [Guaranteed Maximum Price], and

provided that all conditions precedent have been satisfied,

within thirty (30) days after execution of the Certificate of

Substantial Completion of the Project, Owner shall pay

Construction Manager all sums due Construction Manager,

including retainage, less any amounts attributable to

liquidated damages, and less two hundred percent (200%) of

the reasonable cost for completing all incomplete Work,

correcting and bringing into conformance all defective and

nonconforming Work, and handling all unsettled claims. As

a condition precedent to such payment, however,

Construction Manager shall deliver to Owner’s Representative

the final complete set of as-built drawings in the form of

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marked-up blueline drawings, and an electronic format of the

as-built documents, all required releases of claim, all

certificates of occupancy or similar documents required for

the occupation and use of the Project for its intended

purposes, all required warranties and all Project

Documentation as described in Article 12 herein.

Paragraph 14.9, entitled “Payment at Final Completion,” states that if

all conditions precedent have been satisfied, “Final Payment” is due

“within thirty (30) days after execution of the Certificate of Final

Completion.” Paragraph 14.9 defines “Final Payment” as “all unpaid sums

due [CCI] under this Agreement, less any amount properly withheld

pursuant to this Agreement,” and further states that CCI’s “acceptance of

Final Payment shall constitute an unconditional waiver and release of all

claims by [CCI] for additional compensation beyond that provided in the

Final Payment”:

14.9 Payment at Final Completion. Subject to the limitations

of the GMP, and provided that all conditions precedent have

been satisfied, within thirty (30) days after execution of the

Certificate of Final Completion of the Project, Owner shall pay

Construction Manager all unpaid sums due Construction

Manager under this Agreement, less any amount properly

withheld pursuant to this Agreement (“Final Payment”).

Construction Manager’s acceptance of Final Payment

shall constitute an unconditional waiver and release of

all claims by Construction Manager for additional

compensation beyond that provided in the Final

Payment. Final Payment by Owner shall not, however,

constitute a waiver by Owner of its rights or claims arising

from Construction Manager’s failure to perform in strict

accordance with the requirements of the Contract Documents.

(Emphasis added).

Paragraph 14.12, entitled “Conditions Precedent to Payment,” provides

that “[i]n addition to all other conditions contained herein, it shall be a

condition precedent to any payment otherwise due hereunder that . . .

[CCI] have submitted its pay requests and backup documentation in the

time, form, and manner required by this Agreement.”

Paragraph 25.8, entitled “Entire Agreement/Amendments in Writing,”

states in part that “this Agreement may be amended only by written

instrument signed by both Owner and Construction Manager.”

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Significantly, as it concerns a point raised by CCI, the Master Contract

did not prohibit the collection of statutory interest for late payments.

The Dispute

Between 2012 and 2014, the College hired CCI to work on numerous

construction projects pursuant to the Master Contract. Among those

projects were the following: (1) North Campus Building 49 Site Drainage;

(2) ADA Hardware Project; and (3) Central Campus Building 6 Sound

Booth Project (the “Sound Booth project”).

On July 29, 2013, the College executed a purchase order for CCI to

perform the Sound Booth project. Susanne Valdes was the College’s

project manager for this project. Subsequently, the parties corresponded

regarding payment applications submitted by CCI on the project.

By letter dated April 25, 2014, Valdes wrote to CCI that “effective

immediately we are terminating your agreement for the Building 6 Sound

Booth project due to lack of response.” Valdes added that “we have not

heard back from you on a plan to complete the work.” Valdes also noted

that the College had rejected Payment Application #3 “due to an

incomplete submittal.”

The next day, April 26, 2014, CCI’s principal, Thomas Carney, notified

Valdes via email that CCI had “stopped all work” and was “preparing a

final invoice.”

By letter dated July 23, 2014, Valdes wrote that she was placing CCI

“on notice due to you not responding to Broward College in a timely

manner” regarding payment applications, and that CCI had “not met the

terms” in the Master Contract.

On September 3, 2014, Carney met with the College’s Vice President of

Operations to discuss the parties’ dispute.

By letter dated September 15, 2014, CCI sent the College summaries of

open and recently completed projects. The summaries listed the payment

draws for each project, whether the draw was paid or unpaid, and the

number of days the draw was unpaid. With respect to the Sound Booth

project, CCI claimed that “we achieved substantial completion and a

Temporary Certificate of Occupancy on the project on August 28, 2013.”

The payment summary for the Sound Booth project listed five draws,

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including two paid draws, for a total of $101,819.07 (counting only the

latest submission for each draw).

According to one of Carney’s affidavits, CCI also made “specific claims

for interest” in an October 2014 meeting with the Vice President of

Operations.

The Architect for the Sound Booth project reviewed CCI’s September

2014 submission and advised the College that his assessment of the

completed contract amount was $88,465.83, as opposed to the

$101,819.07 claimed by CCI, representing a difference of $13,353.24.

The Reconciliation Report and Enclosed Checks

On June 1, 2015, the College mailed CCI a Reconciliation Report,

together with three checks. The Transmittal cover of the Reconciliation

Report was addressed to “Mr. Tom Carney, Construction Consulting, Inc.”

at CCI’s corporate address. A College employee testified that she “prepared

the reconciliation report based on what [Tom Carney] had submitted” in

his “report of what he thought he was due.”

The Reconciliation Report stated that it was “a summary of the final

agreement between Construction Consulting Contractors [sic] (CCI) and

Broward College to reconcile final payment due to CCI for outstanding

invoices.” The Reconciliation Report was not signed by CCI, nor was it

signed by any employee of the College.

For the North Campus Building 49 Site Drainage project, the

Reconciliation Report identifies a “Final Payment” of $73,341.92.

For the ADA Hardware project, the Reconciliation Report specifies a

“Final Payment” of $83,053 and notes that the project “was reassigned and

completed by another continuing services CM at Risk.” The Reconciliation

Report provides the following “Recommendation” for this project: “CCI’s

claim for the total project is $91,511 after deductive change order in the

amount of $90,682.43. A payment of $8,458.25 was issued. . . .

Recommendation is to execute deductive change order as submitted by

CCI and pay outstanding balance of $83,053.”

For the Sound Booth project, the Reconciliation Report identifies a

“Final Payment” of $8,846.59 and notes that “CCI did not complete the

scope of work for this project.” The Reconciliation Report provides the

following “Resolution” for this project:

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Resolution: CCI’s claim for this project including the

deductive change order ($20,628.25) is $101,246. Payments

of $79,619 have been issued. The disputed balance requested

by CCI is $21,627.

Our recommendation is for Facilities to prepare and execute

the required deductive Change Order and to pay the

outstanding balance per the Architect’s approved amount of

$88,465. The amount owed after payments issued is $8,846.

The Reconciliation Report offered the following “Final Resolution for

payments to CCI”:

Final Resolution for payments to CCI:

Building 49 Site (Pay balance in full) $ 73,341.92

ADA Hardware (Pay balance in full) $ 91,264.13

Sound Booth (Pay Architect-approved amt.) $ 8,846.59

Total recommended amt. to be Paid by BC $165,241.34

(paraphrased for formatting purposes). The Reconciliation Report did not

offer any payment for statutory interest.

The Reconciliation Report also includes a “Final Payment” chart that

lists “Construction Consulting Inc” at the top. The chart sets forth the

“TOTAL PAID” for each project, the “Amount on check” applicable to each

invoice, and the “Check Number” and “Check Date” applicable to each

invoice. The bottom of the chart states “FINAL PAYMENT TO CCI” of

$165,241.34.

Enclosed with the Reconciliation Report were: (1) a check for

$82,748.31; (2) a check for $72,879.76; and (3) a check for $9,613.27. The

three checks totaled $165,241.34, which corresponded with the total

“Final Payment” detailed in the Reconciliation Report. 2 The checks

themselves contained no “Payment in Full” language.

2The amounts on the checks do not correspond to the Total Paid for each project,

as the checks sometimes grouped together invoices from different projects.

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CCI Deposits the Checks and Demands More Money

On June 6, 2015, CCI received the Reconciliation Report and the

checks. Two days later, CCI deposited the checks.

By letter dated June 19, 2015, CCI acknowledged that the College

forwarded “the recent payments for construction work we completed in

2013 and 2014,” and further acknowledged that “[w]e are in receipt of your

reconciliation report for CCI.” CCI disputed the Architect’s “rationale for

cutting our payments by $12,781.00.” CCI also complained about the

College’s “lack of prompt payments,” asserting that “there remains a claim

for interest in accordance with Florida Statue [sic] 218.735.” CCI attached

an invoice for the amount CCI claimed was due “for Broward College not

making timely payments for our construction services.”

The Litigation

A. CCI’s Claims

After the College refused to pay additional funds, CCI filed suit. CCI

amended its complaint multiple times during the litigation, culminating in

a Fourth Amended Complaint. Each iteration of the complaint asserted

claims for violation of Chapter 218 (Count I), violation of Chapter 255

(Count II), declaratory judgment (Count III), writ of mandamus (Count IV),

class action for interest owed (Count V), and breach of contract on the

Sound Booth project (Count VI). 3 Attached to an early version of the

complaint was a spreadsheet detailing the interest CCI claimed it was owed

for the College’s late payments on over 100 invoices for multiple projects

between 2010 and 2014.

B. Disposal of Counts I, III, IV, and V

The College moved for partial summary judgment as to Counts I and II,

arguing that the Local Government Prompt Payment Act and the Florida

Prompt Payment Act were inapplicable to it. The predecessor judge

granted the motion in part and denied it in part, ruling that the College “is

a ‘public entity’ under Florida Statutes, Section 255, but is not a ‘local

governmental entity’ under Florida Statutes, Section 218.”

Consistent with this partial summary judgment order, the trial court

ultimately dismissed Count I of the Fourth Amended Complaint. And,

consistent with earlier rulings on the College’s motions to dismiss, the trial

3 In the Fourth Amended Complaint, Count VI was misnumbered as Count IV.

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court also dismissed Counts III, IV, and V of the Fourth Amended

Complaint. The trial court denied leave to file a Fifth Amended Complaint.

C. Motion for Final Summary Judgment

Meanwhile, the College moved for final summary judgment, arguing in

relevant part that CCI waived and released all claims by accepting Final

Payment.

Much time was spent on the factual issue of whether CCI received the

Reconciliation Report.

At a hearing CCI’s counsel stated: “My client has never testified he

received a reconciliation report.” Relying on this statement, the

predecessor judge ruled that there was a “factual question” as to whether

CCI had received the Reconciliation Report, so he denied the College’s

motion for final summary judgment “as to the affirmative defense of accord

and satisfaction,” while granting the motion in part as to several other

issues.

After much skirmishing in discovery, Carney admitted in a deposition

that CCI received the Reconciliation Report along with the checks it later

cashed.

The College renewed its motion for summary judgment. The successor

judge, Judge Rodriguez, granted the motion as to the two remaining

counts of the Fourth Amended Complaint. The court concluded that the

“undisputed facts mandate that summary judgment be entered for

Broward College based on accord and satisfaction per the terms of the

Master Contract, under which acceptance of Final Payment [constituted]

an unconditional waiver and release of all claims by [CCI] for additional

compensation beyond that provided in the Final Payment.” The court then

entered final judgment in favor of the College, prompting this appeal.

Arguments on Appeal

On appeal, CCI raises issues concerning the application of the Prompt

Payment Act, the language of the Master Contract and the Reconciliation

Report, and the existence of jury questions, which would preclude

summary judgment.

The College responds that CCI accepted Final Payment, thus waiving

and releasing all claims. The College maintains that all of CCI’s claims are

barred by the doctrine of accord and satisfaction and by the plain terms of

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the Master Contract, under which acceptance of Final Payment

constituted “an unconditional waiver and release of all claims.”

Standard of Review

The standard of review for orders granting summary judgment is de

novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126,

130 (Fla. 2000).

Florida’s new summary judgment rule governs the adjudication of any

summary judgment motion decided on or after May 1, 2021, including in

pending cases. In re Amends. to Fla. R. Civ. P. 1.510, 317 So. 3d 72, 77

(Fla. 2021).

The amended rule states that summary judgment is appropriate where

“there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fla. R. Civ. P. 1.510(a) (2021).

“[T]he correct test for the existence of a genuine factual dispute is whether

‘the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.’” In re Amends. to Fla. R. Civ. P. 1.510, 317 So. 3d at 75

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “Under

our new rule, ‘[w]hen opposing parties tell two different stories, one of

which is blatantly contradicted by the record, so that no reasonable jury

could believe it, a court should not adopt that version of the facts for

purposes of ruling on a motion for summary judgment.’” Id. at 75–76

(quoting Scott v. Harris, 550 U.S. 372, 380 (2007)).

Law on Accord and Satisfaction

Accord and satisfaction is a legal doctrine that has long been a part of

Florida contract law.

“An accord and satisfaction results when: (1) the parties mutually

intend to effect a settlement of an existing dispute by entering into a

superseding agreement; and (2) there is actual performance in accordance

with the new agreement.” Martinez v. S. Bayshore Tower, L.L.L.P., 979 So.

2d 1023, 1024 (Fla. 3d DCA 2008). “Compliance with the new agreement

discharges the prior obligations.” Id. Thus, “if an offer clearly serves as

an accord and satisfaction, and the other party accepts the offer, then he

or she is bound to the conditions attached.” Id.

The Florida Supreme Court has declared that “when a claim in

controversy is open and unliquidated and the party to whom it is due

accepts payment in full it will operate as an accord and satisfaction even

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though the party to whom paid declares that he takes it only in part

satisfaction.” Miller-Dunn Co. v. Green, 16 So. 2d 637, 638 (Fla. 1944).

(emphasis added). Thus, a party who so accepts a payment tendered in

full cannot cabin the legal effect of its acceptance.

By contrast, where the facts do not demonstrate that the parties agreed

to resolve a dispute by payment of a set amount, “a partial payment of a

legal obligation does not act to satisfy and discharge that obligation.”

Republic Funding Corp. of Fla. v. Juarez, 563 So. 2d 145, 147 (Fla. 5th DCA

1990).

The language used by the parties in a transaction is crucial to the

creation of an accord and satisfaction. “An accord and satisfaction results

as a matter of law only when the creditor accepts payment tendered on the

expressed condition that its receipt is deemed to be a complete satisfaction

of a disputed issue.” St. Mary’s Hosp., Inc. v. Schocoff, 725 So. 2d 454,

456 (Fla. 4th DCA 1999). “When a creditor negotiates the tendered check

with knowledge of the debtor’s intent, whether through discussions,

correspondence, or unambiguous language on the check, he is then bound

to the agreement and cannot later turn around and sue for the remaining

balance due under the former dispute.” Burke Co. v. Hilton Dev. Co., 802

F. Supp. 434, 439 (N.D. Fla. 1992). Therefore, “[i]f a creditor does not

assent to the condition, then the proper course of action is to return the

check. Simply put, the creditor cannot have his cake and eat it too.” Id.

In Martinez, for example, the Third District noted that “[h]ad the

Purchasers intended the Developer to remain obligated under the contract,

then they should not have cashed their checks.” 979 So. 2d at 1024. “It

would be unjust,” the court reasoned, “to allow a party to accept a check

as an accord and satisfaction, and then later permit that party to sue

under the same rights and obligations that the accord and satisfaction was

intended to release.” Id.

Florida courts have thus recognized that a creditor’s acceptance of

payment results in an accord and satisfaction where the check itself or an

accompanying writing expressly indicates that the check constitutes

payment in full of the debtor’s obligations. See Eder v. Yvette B. Gervey

Interiors, Inc., 407 So. 2d 312, 314 (Fla. 4th DCA 1981) (declaring that an

accord and satisfaction occurs “where a check is tendered in final payment

for goods or services and is appropriately endorsed by the drawer in clear

and unequivocable language which check is then accepted and cashed by

the payee”); Mortell v. Keith, Mack, Lewis & Allison, 528 So. 2d 1362, 1362

(Fla. 3d DCA 1988) (holding that law firm’s “negotiation of its client’s check

marked ‘paid in full,’ which was submitted with a letter clearly

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demonstrating his position that the sum was in complete payment of the

amounts due in an outstanding fee dispute between the two, effected an

accord and satisfaction of the law firm’s claim as a matter of law”); Yelen

v. Cindy’s, Inc., 386 So. 2d 1234, 1234–35 (Fla. 3d DCA 1980) (holding

that an accord and satisfaction occurred upon the creditor cashing the

debtor’s check, despite the creditor crossing out the check’s restrictive

endorsement and writing “received as partial agreement without

prejudice,” where the debtor sent a letter stating that the check was being

tendered “in full satisfaction of the current controversy”); Pino v. Lopez,

361 So. 2d 192, 193 (Fla. 3d DCA 1978) (holding that a check issued and

cashed in “Full and final payment for all goods, services and claims to

date” was an accord and satisfaction as a matter of law); McGehee v. Mata,

330 So. 2d 248, 248–49 (Fla. 3d DCA 1976) (holding that an accord and

satisfaction occurred upon the plaintiff cashing the defendants’ check

where, as part of the offer to settle plaintiff’s claim, the defendants’ cover

letter stated that it was in “full compliance” with the parties’ agreement

and that one of the conditions attached was the execution of a general

release by plaintiff).

Cases finding no accord and satisfaction have focused on ambiguities

in transmittal letters and a lack of clarity as to the matters that a tender

was supposed to cover. For example, in St. Mary’s, we found that an

accord and satisfaction could not be determined as a matter of law due to

the ambiguity of a transmittal letter, which generally conveyed the debtor’s

position that “no further benefits will be payable” but did not expressly

state that the check constituted payment in full for the debtor’s obligations

or that acceptance of the check would constitute an agreement with the

debtor’s position. 725 So. 2d at 456. Other cases have found no accord

and satisfaction in similar circumstances. See Miller v. Perez, 524 So. 2d

1084, 1085–86 (Fla. 4th DCA 1988) (holding that no accord and

satisfaction occurred, despite a limiting endorsement on the check stating

that it constituted “full payment” for “all commissions due,” where the

disputed amount was for a future commission that was not yet due at the

time the creditor cashed the check); Jobear, Inc. v. Dewind Mach. Co., 402

So. 2d 1357, 1358 (Fla. 4th DCA 1981) (holding that where a restrictive

endorsement could be interpreted as releasing only one of two separate

and distinct claims—one for rent and the other for parts and labor—the

creditor’s acceptance of the check did not constitute an accord and

satisfaction as to both claims).

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Both the Language of the Master Contract and

an Accord and Satisfaction Barred CCI’s Claims

The trial court properly entered summary judgment in favor of the

College because CCI’s claims were barred by both the common law

doctrine of accord and satisfaction and the plain language of the Master

Contract, which states that “acceptance of Final Payment shall constitute

an unconditional waiver and release of all claims by [CCI] for additional

compensation beyond that provided in the Final Payment.” There is no

genuine dispute of any material fact.

An accord and satisfaction (or a release under the Master Contract)

occurred as a matter of law because CCI accepted the Final Payment,

which was tendered on the express condition that its receipt was deemed

to be a complete resolution of CCI’s outstanding invoices. This is true even

though CCI later declared that it accepted the checks only as partial

payment of the debt.

The record establishes that after the parties’ relationship broke down

and CCI was terminated from the Sound Booth project, the College

tendered to CCI a Reconciliation Report together with a Final Payment of

three checks. Unlike the letter in St. Mary’s, the Reconciliation Report

made it clear that the College was offering Final Payment as a final

agreement to resolve all outstanding invoices. Specifically, the

Reconciliation Report indicated that it was intended to be a “Final

Resolution for payments to CCI” and a “final agreement” between CCI and

the College “to reconcile final payment due to CCI for outstanding

invoices.” The Reconciliation Report used the term “Final Payment”

multiple times and indicated that it was offering “FINAL PAYMENT TO CCI”

of $165,241.34.

There is no genuine dispute that CCI received the Reconciliation Report

with the checks, and that CCI accepted Final Payment by depositing the

checks in its bank account. That the checks themselves contained no

restrictive endorsement is of no moment because they were accompanied

by the Reconciliation Report, which plainly offered the checks as Final

Payment—a defined term in the Master Contract that effectuated a waiver

and release of all claims. Thus, under either the doctrine of accord and

satisfaction or the Master Contract’s unconditional waiver clause, CCI’s

acceptance of Final Payment constituted a waiver and release of all claims

for additional compensation and gave rise to a final resolution of all

disputed invoices, including claims for statutory interest.

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We reject CCI’s arguments in opposition to accord and satisfaction and

waiver. We discuss four of the arguments as follows.

First, CCI contends that the College’s failure to pay interest under either

Prompt Payment Act precludes an accord and satisfaction. The Florida

Prompt Payment Act provides that “[a] contract between a public entity

and a contractor may not prohibit the collection of late payment interest

charges authorized under s. 255.073(4).” § 255.075, Fla. Stat. (2012-

2014). The Local Government Prompt Payment Act contains a

substantially similar provision. See § 218.75, Fla. Stat. (2012-2014).

It is unnecessary for us to decide whether either statute applies to the

College’s contracts because neither prohibits the waiver of an interest

claim as part of a settlement or an accord and satisfaction.

As CCI points out, an accord and satisfaction is a “contract.” Still,

“settlement agreements are favored by courts and will be enforced where

possible.” Blunt v. Tripp Scott, P.A., 962 So. 2d 987, 988 (Fla. 4th DCA

2007). “If a party accepts an offer for a superseding agreement, which

clearly intends an accord and immediate satisfaction, he or she is bound

to each of the attached conditions of the new agreement and abandons

the rights previously held.” Cirrus Design Corp. v. Sasso, 95 So. 3d 308,

312 (Fla. 4th DCA 2012) (emphasis added).

Moreover, “[u]nless a statute unequivocally states that it changes the

common law, or is so repugnant to the common law that the two cannot

coexist, the statute will not be held to have changed the common law.”

Thornber v. City of Ft. Walton Beach, 568 So. 2d 914, 918 (Fla. 1990). “The

law has long recognized an individual’s right to waive statutory protections

as well as constitutional or contractual rights.” S.J. Bus. Enters., Inc. v.

Colorall Techs., Inc., 755 So. 2d 769, 771 (Fla. 4th DCA 2000). And

statutory rights may be waived as part of a settlement agreement. Unicare

Health Facilities, Inc. v. Mort, 553 So. 2d 159, 161 (Fla. 1989). Assuming

arguendo that one of the statutes applied to the College, nothing in the

Prompt Payment Acts prevented CCI from waiving a statutory right to

interest as part of a settlement after a dispute had arisen regarding the

amount due under the contract.

Importantly, the Master Contract itself did not prohibit the collection of

interest under the Prompt Payment Acts. But it did establish a procedure

under which acceptance of Final Payment would constitute a waiver and

release of any further claims. If CCI wanted to preserve its claim to

statutory interest, it should have refused the College’s offer of Final

Payment and returned the checks.

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Second, CCI argues that the unsigned Reconciliation Report cannot be

binding because the Master Contract requires two signatures for a

modification. This contention is unsound. The Reconciliation Report was

not a modification of the Master Contract, as it did not alter any of its

terms. Instead, the Reconciliation Report advised CCI that the

accompanying checks were intended as Final Payment under the Master

Contract, meaning that CCI’s acceptance of payment would waive and

release any further claims for compensation against the College. The

Reconciliation Report may also be viewed as an offer to enter into an accord

and satisfaction, which CCI accepted by cashing the checks for Final

Payment. An accord and satisfaction is a superseding agreement rather

than a modification to the original agreement.

Third, we reject CCI’s argument that Paragraph 14.9 does not apply

because the job was not completed. CCI asserts that Paragraph 14.9 is

inapplicable because it requires all conditions precedent to be met before

“Final Payment,” which did not occur here. Paragraph 14.9 is entitled

“Payment at Final Completion,” and CCI did not achieve final completion

on certain jobs, including the Sound Booth project. However, our

examination of the full text of the provision establishes that the broad

definition of “Final Payment” in Paragraph 14.9 should apply here.

The first sentence of Paragraph 14.9 accomplishes two things: (1) it

defines “Final Payment”; and (2) it establishes the deadline for Final

Payment once all conditions precedent have been satisfied. The term

“Final Payment” is defined in Paragraph 14.9 as “all unpaid sums due [to

CCI] under this Agreement, less any amount properly withheld pursuant

to this Agreement.” This language contemplates that a “Final Payment”

could occur even where the contractor did not completely perform under

the contract. Importantly, CCI had stopped all work before the College

issued the Reconciliation Report. Thus, by offering Final Payment in the

Reconciliation Report, the College was offering to pay “all unpaid sums

due” to CCI under the Agreement and was waiving any unsatisfied

conditions precedent to Final Payment, such as final completion and

submission of lien release documents. And because CCI accepted the

Final Payment by depositing the checks, this acceptance constituted an

unconditional waiver and release of any claims for further compensation.

To avoid Paragraph 14.9’s unambiguous language that “acceptance of

Final Payment shall constitute an unconditional waiver and release of all

claims by [CCI] for additional compensation,” CCI argues that “[t]he correct

clause is 14.8, Payment at Substantial Completion, since the job was not

completed.” This argument tries to squeeze a square peg into a round

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hole. The Reconciliation Report was not offering Payment at Substantial

Completion, it was offering Final Payment. No further work by CCI was

contemplated by the Reconciliation Report. And the College did not make

any deductions for “two hundred percent (200%) of the reasonable cost for

completing all incomplete Work,” which it would have done if it were

offering a Payment at Substantial Completion.

Fourth, CCI argues that the Sound Booth project was a separate and

distinct claim for which there is no evidence that CCI agreed to a lesser

amount, precluding an accord and satisfaction. CCI’s argument is

unpersuasive. The Reconciliation Report clearly encompassed the Sound

Booth project. Unlike Jobear, this is not a case where the offer of full

payment failed to clarify whether it applied to a separate and distinct

claim. The Reconciliation Report unambiguously offered Final Payment

for the Sound Booth project, so the Sound Booth project was not separate

and distinct from the outstanding invoices covered by the Reconciliation

Report.

Contrary to CCI’s suggestion, the College did not “renege” on the

contract by disputing the amount CCI claimed it was owed on the Sound

Booth project. Unlike Perez, this is not a case where a debtor reneged on

an agreement—before a separate and distinct claim under the agreement

became due—and then unsuccessfully tried to assert accord and

satisfaction as a defense based on the creditor’s acceptance of an earlier

check with release language. Here, the Reconciliation Report

unambiguously offered to pay the outstanding balance on the Sound

Booth project “per the Architect’s approved amount,” which did not include

the disputed balance of $21,627 requested by CCI. And CCI agreed to this

lesser amount in the Reconciliation Report by depositing the checks.

In sum, the College made an offer of Final Payment to CCI intended as

a “final agreement” between the parties “to reconcile final payment due to

CCI for outstanding invoices.” CCI accepted the offer of Final Payment by

depositing the checks, thereby barring CCI’s claims under the doctrine of

accord and satisfaction or alternatively under the unconditional waiver

clause of the Master Contract.

Finally, we affirm the dismissal of Counts III, IV, and V.

Even if the declaratory judgment count had been properly pleaded, any

error in dismissing that count was harmless, as the summary judgment

effectively declared CCI’s rights under the Master Contract and the Prompt

Payment Act.

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The trial court properly dismissed the mandamus count because there

was an adequate remedy at law, namely, an action for damages. See

Huffman v. State, 813 So. 2d 10, 11 (Fla. 2000) (“In order to be entitled to

a writ of mandamus the petitioner must have a clear legal right to the

requested relief, the respondent must have an indisputable legal duty to

perform the requested action, and the petitioner must have no other

adequate remedy available.”).

As to the class action count, the Fourth Amended Complaint failed to

allege sufficient facts to show that all four prerequisites to class

certification were satisfied. Also, CCI had ample opportunity to employ

discovery to ascertain the necessary information that must be pleaded.

See Frankel v. City of Miami Beach, 340 So. 2d 463, 469 (Fla. 1976). It

was not an abuse of discretion for the trial court to deny leave to amend

to file a Fifth Amended Complaint. See Barrett v. City of Margate, 743 So.

2d 1160, 1162 (Fla. 4th DCA 1999) (noting that “[a]lthough there is no

magical number of amendments which are allowed, dismissal of a

complaint that is before the court on a third attempt at proper pleading is

generally not an abuse of discretion”).

Affirmed.

KLINGENSMITH, C.J., and DAMOORGIAN, J., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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