Plantation Key Office Park, LLLP v. Pass International, Inc.

110 So. 3d 505, 2013 WL 1316336, 2013 Fla. App. LEXIS 5356
CourtDistrict Court of Appeal of Florida
DecidedApril 3, 2013
DocketNos. 4D12-169, 4D12-199
StatusPublished
Cited by3 cases

This text of 110 So. 3d 505 (Plantation Key Office Park, LLLP v. Pass International, 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
Plantation Key Office Park, LLLP v. Pass International, Inc., 110 So. 3d 505, 2013 WL 1316336, 2013 Fla. App. LEXIS 5356 (Fla. Ct. App. 2013).

Opinion

MORGAN, DAVID C., Associate Judge.

Douglas Development Group, Inc., and Plantation Key Office Park LLLP (“the Douglas Appellants”) appeal a final summary judgment entered in favor of Pass International, Inc. (“Pass”), and subcontractors Care Sheet Metal and Roofing, Inc., and Brothers Fire Protection, Inc. (“the Subcontractors”) in their claims for reformation, breach of contract, negligence and statutory violations. Because there was a genuine issue of material fact as to the reformation claim, summary judgment was improper and we reverse.

This action arises from damages sustained as a result of a fire that occurred during a multi-million dollar renovation project of ten buildings, which make up the Plantation Key Office Park. The project was owned and developed by the Douglas Appellants. After the fire, the Douglas Appellants commenced this action against Pass and the Subcontractors.

The Douglas Appellants filed an amended complaint asserting the following claims: (1) breach of the master renovation contract against Pass; (2) negligence against all appellees; (3) claims for statutory violation against the Subcontractors; and (4) a count to reform the master owner-contractor agreement with Pass.

As the basis for the reformation claim, the Douglas Appellants assert that the parties to the contract, Plantation Key and Pass, never intended to include A2011 as a part of their written agreement. The A201 document was referenced on most of the pages within the Alll-1997 contract form. The Alll represented the written agreement between Pass and Plantation Key.

To support the claim that A201 was incorporated because of mutual mistake, the Douglas Appellants cite to the deposition testimony of Paul Douglas and Robert Waskiewicz, who negotiated and signed the contract on behalf of Plantation Key and Pass, respectively. At the time of the contract, Mr. Waskiewicz was the Vice President of Pass. The testimony of Mr. Waskiewicz relied upon by the appellants, taken as true, proves that the A201 was not discussed or signed by the parties as they prepared the Alll. Further, and over form objections, Mr. Waskiewicz testified to the following:

Q: Is the reference to the A201 in that contract that you have in front of you ... a mistake?
[objections omitted]
A: Yes.

Mr. Douglas, as representative of Plantation Key, also testified that the inclusion of A201 “was an oversight.”

[507]*507Based on the deposition testimony of Mr. Douglas and Mr. Waskiewicz, the appellants contend that the inclusion of A201 was due to mutual mistake, and therefore reformation was warranted. The appel-lees, however, point to the testimony and affidavit of Pass’ president, Roger Rex, as evidence that A201 was standard form in these contracts and that it was always the intention of Pass that the A201 be incorporated into the Alll. In his affidavit, Mr. Rex avers:

All AIA contract forms Alll-1997 ... explicitly incorporate the general conditions of AIA form A201-1997 ...; these general conditions are an essential element to form Alll-1997; in order to exclude the incorporated General Conditions of A201-1997 from the Alll-1997 contract form, it is necessary to affirmatively provide for such exclusion by additional terms....

Mr. Rex further testified that the AIA “General Conditions” are “part of the contract. It’s written on the front page, every term in the contract has to be clarified by the general conditions. It’s impossible to use an AIA contract without the general conditions.”

The parties all moved for summary judgment. Pass, Care Sheet, and Brothers Fire sought partial summary judgment against the appellants on the grounds that the loss of use and consequential damages were barred as a matter of law, citing John W. Reis, Measure of Damages in Property Loss Cases, 76 Fla. B.J. 32 (Oct. 2002). In their motion for summary judgment, the appellees also argued that A201 applies because there was no evidence that it was intended to be excluded from the contract, and that A201 bars all claims— including consequential damages — against the Contractor and Subcontractors. The Douglas Appellants’ motion for summary judgment argued the A201 provisions did not apply because the testimony proved that A201 was never intended to be a part of the final contract; therefore, the contract should be reformed to reflect the parties’ true intention to exclude A201.2

The trial court held a hearing on the pending motions for summary judgment. Thereafter, the trial court issued five orders in the case. All of the orders are summary in nature and do not contain findings of fact or citations to legal authority. The trial court granted Pass’s motion for summary judgment, and denied the Douglas Appellants’ and Zurich’s claim for reformation. The trial court also denied the Douglas Appellants’ motion for summary judgment as it related to their claim for reformation.

The Douglas Appellants and Zurich filed motions for clarification. After a hearing on these motions, the trial court entered final judgment for Pass, Care Sheet, and Brothers. The Douglas Appellants and Zurich now appeal the final judgment, as well as the orders granting the appellees’ motions for summary judgment and denying appellants’ motions for summary judgment.

On appeal, the appellants contend that it was an error to deny their motion for summary judgment on the reformation claim. At the least, they argue, it was an error to grant the appellees’ motions for summary judgment regarding the incorporation of A201 because, appellants contend, there was a genuine issue of material fact regarding whether the parties intended to include A201 as a part of their final written agreement. Further, appellants [508]*508contend that, assuming A201 does in fact apply in this case, the terms of that document do not preclude their claims for consequential damages, but only claims for damages “to the Work” as defined by A-201.

We have jurisdiction pursuant to Florida Rules of Appellate Procedure 9.110(a)(1) and 9.080(b)(1)(A).

Issues involving summary judgment are reviewed by the appellate court using the de novo standard. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). “Due to the strong presumption that a written agreement accurately expresses the parties’ intent, the party seeking reformation based on a mutual mistake must prove its case by clear and convincing evidence.” BrandsMart U.S.A. of W. Palm Beach, Inc. v. DR Lakes, Inc., 901 So.2d 1004, 1006 (Fla. 4th DCA 2005). However, a trial court may not weigh the evidence or judge the credibility of witnesses in arriving at summary judgment; instead, the moving party must conclusively show the absence of any genuine issues of material fact. Craven v. TRG-Boynton Beach, Ltd., 925 So.2d 476, 480-81 (Fla. 4th DCA 2006).

Where a writing that evidences or embodies an agreement in whole or in part fails to express the agreement because of a mistake of both parties as to the contents or effect of the writing, the court may at the request of a party reform the writing to express the agreement, except to the extent that rights of third parties such as good faith purchasers for value will be unfairly affected.

Restatement (Second) of Contracts § 155 (1981).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Harkless v. Laubhan
219 So. 3d 900 (District Court of Appeal of Florida, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
110 So. 3d 505, 2013 WL 1316336, 2013 Fla. App. LEXIS 5356, Counsel Stack Legal Research, https://law.counselstack.com/opinion/plantation-key-office-park-lllp-v-pass-international-inc-fladistctapp-2013.