Carriage Hills Condominium, Inc. v. JBH Roofing & Constructors, Inc.

109 So. 3d 329, 2013 WL 1136399, 2013 Fla. App. LEXIS 4420
CourtDistrict Court of Appeal of Florida
DecidedMarch 20, 2013
DocketNo. 4D11-2251
StatusPublished
Cited by19 cases

This text of 109 So. 3d 329 (Carriage Hills Condominium, Inc. v. JBH Roofing & Constructors, Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carriage Hills Condominium, Inc. v. JBH Roofing & Constructors, Inc., 109 So. 3d 329, 2013 WL 1136399, 2013 Fla. App. LEXIS 4420 (Fla. Ct. App. 2013).

Opinion

HANZMAN, MICHAEL J., Associate Judge.

Appellant, Carriage Hills Condominium, Inc., (“Carriage Hills”), appeals the trial court’s entry of a summary final judgment in favor of Appellee, JBH Roofing and Construction, Inc., (“JBH”). Carriage Hills contends that the lower court erred by: (a) striking two affidavits filed in opposition to JBH’s motion on the basis that each directly contradicted deposition testimony of its corporate representative, and (b) entering summary final judgment based solely on that deposition testimony which, according to Carriage Hills, did not establish the absence of any genuine issue of material fact to be tried. We agree and reverse.

A. FACTS AND RELEVANT PROCEDURE

Despite being over pled, this case presents a garden-variety contract dispute. Carriage Hills, through its board of directors (“Board”), operates an “over 55” condominium community. In 2006 the Board retained JBH to repair roof damage resulting from Hurricane Wilma. The parties entered into what is referred to in the industry as a “full scope contingency contract,” which obligated JBH to perform only work approved by Carriage Hills’ public adjuster, and to accept payments approved by, and received from, Carriage Hills’ insurer.

In July 2007, shortly after its contract was terminated by the Board, JBH filed suit asserting claims for breach of contract, tortious interference, promissory es-toppels, and unjust enrichment. Count I (“Breach of Contract”) alleges no less than thirteen claimed breaches, including: (a) an alleged failure to pay for repairs approved by the carrier; (b) an alleged failure to diligently present claims for loss to the carrier; and (c) the retention of other roofing contractors to perform work that should have gone to JBH pursuant to the contract. In Count II (“Tortious Interference with Business Relationships”), JBH claims that Carriage Hills intentionally interfered with advantageous business relationships it enjoyed with Carriage Hills’ public adjuster and insurance carrier. Count III (“Promissory Estoppel”) alleges that JBH forewent other opportunities in detrimental reliance on Carriage Hills’ promise to retain it to perform roofing work, including work for damages caused by Hurricane Wilma. Finally, Count IV (“Unjust Enrichment”) alleges that Carriage Hills would be unjustly enriched if allowed to retain the benefits of repairs made by JBH without paying for them.

Carriage Hills answered and raised twelve affirmative defenses alleging, among other things, that (1) the contract was “executed without Board approval”; (2) that it had already paid JBH in full for all work performed; (3) that JBH failed to mitigate damages; and (4) that JBH faded to perform its repairs satisfactorily or with due diligence. Carriage Hills also filed counterclaims for breach of contract, breach of the covenant of good faith and fair dealing, and slander of title.

While both parties were quick out of the gate with aggressive pleadings, it was not until January 2010 that the first — and to date only — deposition was taken. It occurred when JBH noticed the “Corporate Representative of Carriage Hills Condo with the most knowledge of the allegations contained in the complaint.” The notice made no reference to any particular issued) to be addressed, or to Carriage [333]*333Hills’ affirmative defenses and counterclaims. Carriage Hills tendered Ms. Diane Foley, who at that time was one of its board members. Ms. Foley, in her then capacity as President of the association, executed the JBH contract and was apparently the person with “the most knowledge” of the allegations in the complaint. Carriage Hills nevertheless maintains that its Board was divided on the issue of whether to terminate the JBH contract, and that Ms. Foley was in the minority.

After testifying that she was authorized to execute the contract, a point now conceded by Carriage Hills, Ms. Foley was repeatedly asked whether, in her “opinion,” contentions within the parties’ pleadings were accurate. When asked whether she “believed” JBH had breached the contract, she responded, “In my layman opinion, no.” Similarly, when directed to Carriage Hills’ contention that JBH failed to exercise due diligence in the performance of the contract, she acknowledged that while other board members were of that view, she did not “share with that opinion.” She testified that she was “not aware” of any unauthorized work performed, and that she “believed” that JBH completed all the tasks it was authorized to do up to the time of termination. She also did not believe JBH’s work was defective. On the question of whether JBH was owed money, Ms. Foley responded that “in my opinion, it is possible,” but she did “not know” whether JBH was in fact due additional funds.

Armed with Ms. Foley’s testimony, JBH filed its Motion for Summary Judgment. According to JBH there was no issue to be tried because Ms. Foley admitted: “(1) the existence of a contract; (2) general liability; (3) that damages [are] due to JBH; (4) a denial on their [Carriage Hills] own affirmative defenses ...; and (5) a general admission that their entire defense is a vendetta against a former board president and current representative [Ms. Foley].” The Motion did not specify whether it was seeking an adjudication on all — or only some — of the counts asserted in the complaint, or whether it also sought an adjudication on any of the counterclaims.

Carriage Hills responded with the affidavits of Ralph D’Alconzo, its former president, and Grace Barona, its treasurer. Mr. D’Alconzo testified that JBH performed “substandard work with respect to the roof systems” and “submitted duplicate charges.” He also testified that JBH “conducted unauthorized work, including work that was not paid for [by the carrier].” Ms. Barona similarly testified that due to JBH’s shoddy repair work, Carriage Hills was forced to retain other roofing contractors to fix “water leaks and problems encountered with the roof system,” and that JBH improperly invoiced Carriage Hills for work that had not been approved by the insurance carrier. She also testified that JBH was paid all of the funds approved by — and received from— the insurer.

Finding that Ms. Foley, as its corporate representative, was “Carriage Hills,” and that her testimony was therefore disposi-tive, the trial court struck the D’Alconzo and Barona affidavits, invoking the principle that “[i]n situations where the non-movant in a motion for summary judgment submits an affidavit which directly contradicts an earlier deposition ..., courts may disregard the later affidavit.” Hyde v. Stanley Tools, 107 F.Supp.2d 992, 993 (E.D.La.2000). The trial court then granted JBH’s Motion for Summary Judgment based on Ms. Foley’s testimony. Carriage Hills timely appealed. Our review is de novo. See Carnes v. Fender, 936 So.2d 11, 13 (Fla. 4th DCA 2006).

[334]*334B. RULE 1.310(b)(6) AND THE BINDING EFFECT OF A CORPORATE REPRESENTATIVE’S TESTIMONY

To place matters in a proper context we begin our review by summarizing how Florida Rule of Civil Procedure 1.310(b)(6) — which governs corporate representative depositions — is supposed to operate, an exercise which illustrates that the present dispute resulted in large part due to both parties’ failure to follow its procedures.

As we have previously pointed out, the substance of Rule 1.310(b)(6) was borrowed from a 1970 amendment to its federal counterpart, Federal Rule of Civil Procedure 30(b)(6).

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Cite This Page — Counsel Stack

Bluebook (online)
109 So. 3d 329, 2013 WL 1136399, 2013 Fla. App. LEXIS 4420, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carriage-hills-condominium-inc-v-jbh-roofing-constructors-inc-fladistctapp-2013.