Third District Court of Appeal State of Florida
Opinion filed January 31, 2024. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D22-699 Lower Tribunal No. 17-17110 ________________
Q.G.S. Development, Inc., etc., et al., Appellants,
vs.
National Lining Systems, Inc., etc., Appellee.
An appeal from the Circuit Court for Miami-Dade County, Mark Blumstein, Judge.
Marlowe McNabb Machnik, P.A., Scott W. Machnik, and Jacqueline J. Brown (Tampa), for appellants.
Crabtree & Auslander, Charles M. Auslander, John G. Crabtree, Brian C. Tackenberg, Ferencik Libanoff Brandt Bustamante & Goldstein, P.A., Robert E. Ferencik, and Ira L. Libanoff (Plantation), for appellee.
Before FERNANDEZ, SCALES, and MILLER, JJ.
MILLER, J. This dispute arises out of the renovation of the Riviera Country Club
(the “Club”) golf course. Q.G.S. Development, Inc. ("QGS"), the general
contractor, and Berkley Regional Insurance Company, the surety, appeal
from a final judgment awarding damages to appellee, National Lining
Systems, Inc. (“NLS”), the subcontractor, for unpaid invoices following a
protracted nonjury trial. Appellants assert a myriad of errors on appeal, most
of which implicate factual and evidentiary considerations. We affirm in all
respects and write only to reiterate the familiar principle that although a
reviewing court might have reached a different result in the first instance, it
is not entitled to reweigh or reevaluate conflicting evidence. See State v.
Burke, 531 So. 2d 416, 418 (Fla. 4th DCA 1988).
BACKGROUND
In 2015, the Riviera Country Club hired QGS to construct an irrigation
lake on its property and refurbish the existing eighteen-hole golf course.
QGS, in turn, retained NLS to install a polyvinyl chloride (“PVC”) reservoir
liner on the bottom of the lake. Berkley issued a bond to guarantee
subcontractor payment for the project.
The parties exchanged purchase orders, proposals, and project plans
and specifications, along with two quality control manuals. Under the terms
of the agreement, QGS was to construct the lake and prepare the subgrade,
2 while NLS would install a protective textile layer over the subgrade, followed
by the reservoir liner. The liner would be secured by a sand ballast system.
QGS was solely responsible for dewatering operations.
Despite expressing concerns regarding the site conditions, NLS
installed the liner. QGS filled the lake and implemented the sand ballast
system.
QGS failed to pay the last invoice for the liner installation, and, mere
months later, portions of the liner began to lift. QGS contacted NLS for
remedial assistance, but, before NLS arrived on site, a QGS employee cut
part of the liner.
NLS effectuated repairs, but, soon after, the Club noticed the water
elevation in the lake was rapidly decreasing. A survey procured by QGS
revealed multiple leaks in the liner. QGS drained the lake, removed the sand
ballast, and isolated the leaks. NLS again performed repairs and
propounded invoices, but QGS refused to tender payment.
NLS filed suit against QGS and Berkley in the circuit court seeking
damages for breach of contract and performance under the payment bond,
or, alternatively, quantum meruit or unjust enrichment relief. QGS
counterclaimed for breach of contract and negligence.
3 The case proceeded to a bench trial, at the conclusion of which the
judge issued a lengthy and comprehensive order and entered judgment for
the unpaid invoices in favor of NLS. As relevant to this appeal, the court
attributed the lining failure to QGS’s ineffective dewatering operations and
improper installation of the sand ballast. The court further rejected the
counterclaim outright, finding that, given untenable time constraints and
other extraneous circumstances, NLS performed within industry standards.
A motion for rehearing proved futile, and the instant appeal ensued.
LEGAL ANALYSIS
It is axiomatic that, in a bench trial, the trial judge possesses the
“superior vantage point to see and hear the witnesses and judge their
credibility.” Guzman v. State, 721 So. 2d 1155, 1159 (Fla. 1998), cert.
denied, 526 U.S. 1102 (1999). Consequently, “the factual findings of the
judge are entitled to the weight of a jury verdict.” Petion v. State, 48 So. 3d
726, 730 (Fla. 2010). The appellate court is only authorized to reverse if
such findings are not supported by competent, substantial evidence. See
Citibank, N.A. v. Olsak, 208 So. 3d 227, 229 (Fla. 3d DCA 2016).
In the instant case, appellants assail the conclusion that improper
dewatering operations precipitated the breach of the liner, along with the
corollary finding that QGS unilaterally cut the liner as soon as the first
4 infirmity materialized, leaving NLS with no choice other than to use
concededly “unorthodox” techniques to effectuate the repairs. In doing so,
appellants argue they presented a more cogent and logical theory of
recovery.
Although he equivocated at times during his testimony, QGS’s principal
confirmed that a QGS employee cut into the liner while NLS was in transit to
the project site, and NLS adduced evidence that the unilateral cut doomed
the liner to failure.
Further, the record is replete with evidence concerning the impact of
dewatering issues on the project. To identify but a few: (1) NLS was reluctant
to perform its contractual tasks in wet conditions; (2) the Club deemed
dewatering necessary to ensure proper bonding; (3) a consultant hired by
the Club concluded the liner had been damaged by an upswell of
groundwater; and (4) QGS admitted that dewatering issues plagued the
renovation.
Other evidence of record, of course, arguably supported the
proposition that NLS contributed to the failures by way of its repair
methodology. That may well be true, but the scope of our review does not
entail examining evidence that potentially supports a different result.
Instead, we must only determine whether the findings of the trial court are
5 supported by competent, substantial evidence. See Whitby v. Infinity Radio,
Inc., 961 So. 2d 349, 354 (Fla. 4th DCA 2007) (“An appellate court will not
disturb a trial court’s factual findings when supported by competent
substantial evidence.”). In this vein, “the appellate court should interpret the
record and all reasonable inferences and deductions capable of being drawn
therefrom in the light most favorable to sustain [the trial court’s] conclusions.”
DeLalio v. Food Palace, Inc., 330 So. 2d 835, 837 (Fla. 3d DCA 1976); see
also Shaw v. Shaw, 334 So. 2d 13, 16 (Fla. 1976) (“It is not the function of
the appellate court to substitute its judgment for that of the trial court through
re-evaluation of the testimony and evidence from the record on appeal before
it.”); Markham v. Fogg, 458 So.
Free access — add to your briefcase to read the full text and ask questions with AI
Third District Court of Appeal State of Florida
Opinion filed January 31, 2024. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D22-699 Lower Tribunal No. 17-17110 ________________
Q.G.S. Development, Inc., etc., et al., Appellants,
vs.
National Lining Systems, Inc., etc., Appellee.
An appeal from the Circuit Court for Miami-Dade County, Mark Blumstein, Judge.
Marlowe McNabb Machnik, P.A., Scott W. Machnik, and Jacqueline J. Brown (Tampa), for appellants.
Crabtree & Auslander, Charles M. Auslander, John G. Crabtree, Brian C. Tackenberg, Ferencik Libanoff Brandt Bustamante & Goldstein, P.A., Robert E. Ferencik, and Ira L. Libanoff (Plantation), for appellee.
Before FERNANDEZ, SCALES, and MILLER, JJ.
MILLER, J. This dispute arises out of the renovation of the Riviera Country Club
(the “Club”) golf course. Q.G.S. Development, Inc. ("QGS"), the general
contractor, and Berkley Regional Insurance Company, the surety, appeal
from a final judgment awarding damages to appellee, National Lining
Systems, Inc. (“NLS”), the subcontractor, for unpaid invoices following a
protracted nonjury trial. Appellants assert a myriad of errors on appeal, most
of which implicate factual and evidentiary considerations. We affirm in all
respects and write only to reiterate the familiar principle that although a
reviewing court might have reached a different result in the first instance, it
is not entitled to reweigh or reevaluate conflicting evidence. See State v.
Burke, 531 So. 2d 416, 418 (Fla. 4th DCA 1988).
BACKGROUND
In 2015, the Riviera Country Club hired QGS to construct an irrigation
lake on its property and refurbish the existing eighteen-hole golf course.
QGS, in turn, retained NLS to install a polyvinyl chloride (“PVC”) reservoir
liner on the bottom of the lake. Berkley issued a bond to guarantee
subcontractor payment for the project.
The parties exchanged purchase orders, proposals, and project plans
and specifications, along with two quality control manuals. Under the terms
of the agreement, QGS was to construct the lake and prepare the subgrade,
2 while NLS would install a protective textile layer over the subgrade, followed
by the reservoir liner. The liner would be secured by a sand ballast system.
QGS was solely responsible for dewatering operations.
Despite expressing concerns regarding the site conditions, NLS
installed the liner. QGS filled the lake and implemented the sand ballast
system.
QGS failed to pay the last invoice for the liner installation, and, mere
months later, portions of the liner began to lift. QGS contacted NLS for
remedial assistance, but, before NLS arrived on site, a QGS employee cut
part of the liner.
NLS effectuated repairs, but, soon after, the Club noticed the water
elevation in the lake was rapidly decreasing. A survey procured by QGS
revealed multiple leaks in the liner. QGS drained the lake, removed the sand
ballast, and isolated the leaks. NLS again performed repairs and
propounded invoices, but QGS refused to tender payment.
NLS filed suit against QGS and Berkley in the circuit court seeking
damages for breach of contract and performance under the payment bond,
or, alternatively, quantum meruit or unjust enrichment relief. QGS
counterclaimed for breach of contract and negligence.
3 The case proceeded to a bench trial, at the conclusion of which the
judge issued a lengthy and comprehensive order and entered judgment for
the unpaid invoices in favor of NLS. As relevant to this appeal, the court
attributed the lining failure to QGS’s ineffective dewatering operations and
improper installation of the sand ballast. The court further rejected the
counterclaim outright, finding that, given untenable time constraints and
other extraneous circumstances, NLS performed within industry standards.
A motion for rehearing proved futile, and the instant appeal ensued.
LEGAL ANALYSIS
It is axiomatic that, in a bench trial, the trial judge possesses the
“superior vantage point to see and hear the witnesses and judge their
credibility.” Guzman v. State, 721 So. 2d 1155, 1159 (Fla. 1998), cert.
denied, 526 U.S. 1102 (1999). Consequently, “the factual findings of the
judge are entitled to the weight of a jury verdict.” Petion v. State, 48 So. 3d
726, 730 (Fla. 2010). The appellate court is only authorized to reverse if
such findings are not supported by competent, substantial evidence. See
Citibank, N.A. v. Olsak, 208 So. 3d 227, 229 (Fla. 3d DCA 2016).
In the instant case, appellants assail the conclusion that improper
dewatering operations precipitated the breach of the liner, along with the
corollary finding that QGS unilaterally cut the liner as soon as the first
4 infirmity materialized, leaving NLS with no choice other than to use
concededly “unorthodox” techniques to effectuate the repairs. In doing so,
appellants argue they presented a more cogent and logical theory of
recovery.
Although he equivocated at times during his testimony, QGS’s principal
confirmed that a QGS employee cut into the liner while NLS was in transit to
the project site, and NLS adduced evidence that the unilateral cut doomed
the liner to failure.
Further, the record is replete with evidence concerning the impact of
dewatering issues on the project. To identify but a few: (1) NLS was reluctant
to perform its contractual tasks in wet conditions; (2) the Club deemed
dewatering necessary to ensure proper bonding; (3) a consultant hired by
the Club concluded the liner had been damaged by an upswell of
groundwater; and (4) QGS admitted that dewatering issues plagued the
renovation.
Other evidence of record, of course, arguably supported the
proposition that NLS contributed to the failures by way of its repair
methodology. That may well be true, but the scope of our review does not
entail examining evidence that potentially supports a different result.
Instead, we must only determine whether the findings of the trial court are
5 supported by competent, substantial evidence. See Whitby v. Infinity Radio,
Inc., 961 So. 2d 349, 354 (Fla. 4th DCA 2007) (“An appellate court will not
disturb a trial court’s factual findings when supported by competent
substantial evidence.”). In this vein, “the appellate court should interpret the
record and all reasonable inferences and deductions capable of being drawn
therefrom in the light most favorable to sustain [the trial court’s] conclusions.”
DeLalio v. Food Palace, Inc., 330 So. 2d 835, 837 (Fla. 3d DCA 1976); see
also Shaw v. Shaw, 334 So. 2d 13, 16 (Fla. 1976) (“It is not the function of
the appellate court to substitute its judgment for that of the trial court through
re-evaluation of the testimony and evidence from the record on appeal before
it.”); Markham v. Fogg, 458 So. 2d 1122, 1126 (Fla. 1984) (holding appellate
court should not substitute its judgment for that of trier of fact as long as there
is competent substantial evidence); Marrone v. Mia. Nat'l Bank, 507 So. 2d
652, 653 (Fla. 3d DCA 1987) (trial court must evaluate and weigh conflicting
testimony after observing the credibility of witness); Dreyfuss v. Dreyfuss,
701 So. 2d 437, 440 (Fla. 3d DCA 1997) (concluding appellate court has duty
to affirm trial court findings supported by competent, substantial evidence);
Zerquera v. Centennial Homeowners' Ass'n, Inc., 721 So. 2d 751, 752 (Fla.
3d DCA 1998) (finding in bench trial, judge's findings of fact will not be
disturbed unless totally unsupported by competent and substantial
6 evidence); Lahodik v. Lahodik, 969 So. 2d 533, 535 (Fla. 1st DCA 2007) (“It
is well-established that the appellate court does not re-weigh the evidence
or the credibility of witnesses.”); Griffin Indus., LLC v. Dixie Southland Corp.,
162 So. 3d 1062, 1066 (Fla. 4th DCA 2015) (“It is not the role of appellate
courts to re-weigh evidence presented to trial courts, to assess whether there
is contradictory evidence in the record which supports a different conclusion
than that reached by the trial court, to retry the case, or to substitute its
judgment for the trial court’s on factual matters.”). And here, our review of
the record yields testimonial support for each of the challenged findings.
Accordingly, we are dutybound to affirm the judgment under review.1
Affirmed.
1 We summarily reject the remaining assertions of error. See Bryan v. Bryan, 930 So. 2d 693, 696 (Fla. 3d DCA 2006) (citing Perlow v. Berg-Perlow, 875 So. 2d 383, 390 n. 5 (Fla. 2004)) (rejecting contended Perlow violation where “the trial court actively participated in the final hearing by asking numerous questions[,] . . . t[aking] notes[, and] . . . allow[ing] both parties to submit proposed final judgments”); Everett Painting Co., Inc. v. Padula & Wadsworth Constr., Inc., 856 So. 2d 1059, 1061 (Fla. 4th DCA 2003) (“A payment bond is a separate agreement from the contract and an inability to proceed against [the c]ontractor does not necessarily prevent recovery on the bond.”); Alvarez v. All Star Boxing, Inc., 258 So. 3d 508, 512 (Fla. 3d DCA 2018) (“Damages . . . may be valued based on either (1) the market value of the services; or (2) the value of the services to the party . . . enriched.”); Wiederhold v. Wiederhold, 696 So. 2d 923, 924 (Fla. 4th DCA 1997) (“[T]he trial court can reject [evidence if] it . . . offer[s] a reasonable explanation for doing so.”).