IN THE SUPREME COURT OF THE STATE OF FLORIDA CASE NO.: SC Petitioner, Appeal No.: 4D v. L.T. Case No.: CA035159XXXXMB

Transcription

1 IN THE SUPREME COURT OF THE STATE OF FLORIDA FLORIDA BLACKTOP, INC., CASE NO.: SC Petitioner, Appeal No.: 4D v. L.T. Case No.: CA035159XXXXMB WEST CONSTRUCTION, INC., Respondent. / PETITIONER S JURISDICTIONAL BRIEF For Discretionary Review of Conflicts with Other Decisions of District Courts of Appeal and the Florida Supreme Court of Florida On the Same Question of Law VEZINA, LAWRENCE & PISCITELLI, P.A. A Professional Association JOSEPH W. LAWRENCE, II Florida Bar No.: jlawrence@vlplaw.com MIKE PISCITELLI Florida Bar No.: mpiscitelli@vlplaw.com 300 SW First Avenue, Suite 150 Fort Lauderdale, FL Telephone: Facsimile:

2 TABLE OF CONTENTS TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iii STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF THE ARGUMENT... 3 ARGUMENT ON JURISDICTION... 4 I. THE FOURTH DISTRICT S OPINION DIRECTLY AND EXPRESSLY CONFLICTS WITH THIS COURT S RULING IN WEBSTER LUMBER CO. V. LINCOLN... 4 II. THE FOURTH DISTRICT S OPINION DIRECTLY AND EXPRESSLY CONFLICTS WITH THE FIRST DISTRICT COURT S RULING IN W.R. TOWNSEND CONTRACTING, INC. v. JENSEN CIVIL CONSTR., INC III. THE FOURTH DISTRICT S OPINION DIRECTLY AND EXPRESSLY CONFLICTS WITH THIS COURT S RULING IN UNIVERSAL INSURANCE CO. OF NORTH AMERICA v. WARFEL, AND THE THIRD DISTRICT S RULINGS IN BRYAN v. BRYAN AND ROCA v. REPUBLIC NAT L BANK OF MIAMI... 7 CONCLUSION... 9 CERTIFICATE OF SERVICE... 9 CERTIFICATE OF COMPLIANCE...10 ii

3 TABLE OF AUTHORITIES Cases Bryan v. Bryan, 930 So. 2d 693, 697 (Fla. 3d DCA 2006)...7, 9 Cinghina v. Racik, 647 So. 2d 289 (Fla. 4 th DCA 1994)... 8 Collins v. School Board of Broward County, 471 So. 2d 560, 563 (Fla. 4 th DCA 1985)... 8 Columbia Malting Co. v. Clausen-Flanagan Corp., 3 F.2d 547 (2d Cir. 1924)... 5 Dakota, Minnesota & Eastern R.R. Corp. v. Wisconsin & Southern R.R. Corp., 657 F.3d 615, 619 (7 th Cir. 2011)... 8 Gustavsson v. Washington Mutual Bank, F.A., 850 So. 2d 570, 574 (Fla. 4 th DCA 2003)... 5 Holman Erection Co. v. Orville E. Madsen & Sons, Inc., 330 N.W. 2d 693, 695 (Minn. 1983)... 6 Indus. Elec.-Seattle, Inc. v. Bosko, 410 P.2d 10, (Wash. 1966)... 8 Merritt-Chapman & Scott Corp. v. Gunderson Bros. Eng g. Corp., 305 F,2d 659, (9 th Cir. 1962)... 6 Ray-Hof Agencies, Inc. v. Petersen, 123 So. 2d 251, 252 (Fla. 1960)... 5 Roca v. Republic Nat l. Bank of Miami, 512 So. 2d 1044, 1045 (Fla. 3d DCA 1987)...4, 9 Universal Ins. Co. of North America v. Warfel, 82 So. 3d 47, 64 (Fla. 2012). 4, 7, 9 W.R. Townsend Contracting, Inc. v. Jensen Civil Constr., Inc., 728 So. 2d 297 (Fla. 1 st DCA 1999)... 4, 5, 6, 7 Webster Lumber Co. v. Lincoln, 115 So. 498, 504 (Fla. 1927)...3, 4 Rules Fla. R. App. P (a)(2)(A)... 3 Constitutional Provisions Art. V, 3 Fla. Const iii

4 STATEMENT OF THE CASE AND FACTS 1 This case arose from a proposal submitted by Petitioner, Florida Blacktop, Inc. ( Florida Blacktop ) to perform work as a subcontractor to Respondent West Construction, Inc. ( West ) on the Public Safety Multi- Purpose Building Project ( Project ) for the Village of Wellington ( Village ) in Palm Beach County, Florida. West was the general contractor which submitted the low bid to construct the Project and was accordingly awarded the prime contract ( Prime Contract ). Florida Blacktop s proposal to West was conditioned upon use of the proposal by West constituting acceptance of Florida Blacktop s offer. 2 West did use Florida Blacktop s proposal in its bid and, after West was awarded the Prime Contract, West listed Florida Blacktop as a subcontractor in the required subcontractor listing provided to the Village. Despite West s use of Florida Blacktop s proposal to prepare its winning prime bid, a plain example of 1 References to the Fourth District Court of Appeal opinion dated April 25, 2012 are referred to as Opinion at with the appropriate page number inserted. 2 Specifically, the proposal stated: Florida Blacktop, Inc. has devoted time, money and resources toward the preparation of this bid and as consideration therefore its submitting this bid to buyer with the express understanding and agreement of the parties that in the event the buyer in any way uses Florida Blacktop, Inc. s bid and/or incorporating any portion of Florida Blacktop, Inc. s bid in correspondence with third parties in any way involved with construction work on the project at issue such action(s) shall in all instances constitute acceptance of Florida Blacktop, Inc. s bid and shall create a binding contract between the parties consistent with the bid documents. 1

5 acceptance by conduct, West later decided to employ a different subcontractor and not Florida Blacktop. Florida Blacktop sued West for breaching West s agreement to employ Florida Blacktop. After a jury trial, the jury returned a verdict in favor of Florida Blacktop against West on the breach of contract claim in the amount of $55, The trial court entered judgment in favor of Florida Blacktop in accord with the jury verdict. West appealed the judgment. On April 25, 2012, the Fourth District Court of Appeal reversed the jury verdict and remanded for judgment in favor of West. The Fourth District held that West did not accept Florida Blacktop s proposal so as to form a contract because there was no express oral or written acceptance of Florida Blacktop s proposal and insufficient evidence of a contract implied in fact. Opinion at 4. The appellate court based that ruling on the finding that Florida Blacktop was not entitled to control the form and manner of the acceptance of Florida Blacktop s offer by specifying that the use of Florida Blacktop s proposal constituted acceptance. Opinion at 4. The appellate court also held that there was insufficient evidence of custom and usage or course of dealing so as to show contract formation. (Opinion at 4). 2

6 Florida Blacktop timely filed its Motion for Rehearing and for Rehearing En Banc on May 10, The Fourth District s June 13, 2012 Order denied the Motion for Rehearing. On July 12, 2012, Florida Blacktop timely filed its Notice to Invoke this Court s Discretionary Review of the Opinion. SUMMARY OF THE ARGUMENT The decision of the Fourth District expressly and directly conflicts with decisions of other District Courts of Appeal and the Florida Supreme Court on the same questions of law. Art. V, 3 Fla. Const.; Fla. R. App. P (a)(2)(A). 3 Specifically, the Fourth District s holding that the offeror cannot define the form and manner of the offeree s acceptance is in direct conflict with this Court s holding in Webster Lumber Co. v. Lincoln, 115 So. 498, 504 (Fla. 1927) that the offeror controls its offer, including the time, place and mode of acceptance. Additionally, the Fourth District s holding that Florida Blacktop could not condition its proposal to West such that West was bound to employ Florida 3 Although not certified as such by the Fourth District, the issue in this case is of great public importance. Subcontractors commit substantial resources to the preparation of bids to prime contractors, only to have the prime contractor bid shop for a lower priced subcontractor after award. If subcontractors can do nothing to protect themselves against such bid shopping, the impact on many small businesses is severe. The importance of this issue is demonstrated by the fact that the American Subcontractors Association, Inc. submitted an amicus brief in the appeal below and has indicated its intent to file an amicus brief with this Court, should the Court accept jurisdiction and review the 4 th DCA s decision in this important case. 3

7 Blacktop through West s use of Florida Blacktop s proposal is in direct conflict with the First District s holding in W.R. Townsend Contracting, Inc. v. Jensen Civil Constr., Inc., 728 So. 2d 297 (Fla. 1 st DCA 1999) that a subcontractor can condition its proposal on the general contractor s employment of that subcontractor such that a contract is created. Finally, the Fourth District also permitted West to benefit from its invited error of excluding additional expert testimony on industry customs and standards. That holding is in direct conflict with Roca v. Republic Nat l. Bank of Miami, 512 So. 2d 1044, 1045 (Fla. 3d DCA 1987), Bryan v. Bryan, 930 So. 2d 693, 697 (Fla. 3d DCA 2006), and this Court s decision in Universal Ins. Co. of North America v. Warfel, 82 So. 3d 47, 64 (Fla. 2012). ARGUMENT ON JURISDICTION I. THE FOURTH DISTRICT S OPINION DIRECTLY AND EXPRESSLY CONFLICTS WITH THIS COURT S RULING IN WEBSTER LUMBER CO. V. LINCOLN The conflict between the Fourth District s Opinion and Webster Lumber Co. v. Lincoln, 115 So. 498, 504 (Fla. 1927) could not be more express and direct. Webster Lumber expressly holds that the offeror controls the terms of its offer, including the right to prescribe in his offer any conditions as to time, place, quantity, mode of acceptance, or other matters which it may please him to insert in and make a part thereof.... Id. at 504. (e.s.). This long established principle of 4

8 Florida law was more recently recognized by this Court in Ray-Hof Agencies, Inc. v. Petersen, 123 So. 2d 251, 252 (Fla. 1960) and by the Fourth District Court itself in Gustavsson v. Washington Mutual Bank, F.A., 850 So. 2d 570, 574 (Fla. 4 th DCA 2003) ( This cause is but another example that the offeror is still the master of the offer. ). 4 The Opinion contradicts that basic principle of Florida law by adopting the non-binding decision of the United States Second Circuit Court of Appeals that unless the offeree agrees in advance, the offeror cannot, by the offer, define the form and manner of the offeree s acceptance. Opinion at 4, citing, Columbia Malting Co. v. Clausen-Flanagan Corp., 3 F.2d 547, 551 (2d Cir. 1924). That statement may be good law elsewhere, but not in Florida. It is impermissible for the Fourth District to substitute non-binding case law from a foreign federal court that conflicts with binding precedent from this Court. This conflict should be resolved in favor of upholding the longstanding principle of Florida law that the offeror controls the offer in contract formation. II. THE FOURTH DISTRICT S OPINION DIRECTLY AND EXPRESSLY CONFLICTS WITH THE FIRST DISTRICT COURT S RULING IN W.R. TOWNSEND CONTRACTING, INC. v. JENSEN CIVIL CONSTR., INC. 4 While the Fourth District may have the authority to overrule its own prior rulings, there is no indication in the opinion at issue that the Fourth District intended to overrule its Gustavsson holding, which remains good law. In any event, the Fourth District cannot overrule binding Florida Supreme Court precedent. 5

9 In W.R. Townsend Contracting, Inc. v. Jensen Civil Constr., Inc., 728 So. 2d 297 (Fla. 1 st DCA 1999), the First District Court held the allegations of a Complaint were sufficient to demonstrate that a binding contract was formed when a subcontractor submitted a bid to the general contractor conditioned on the general contractor s promise to employ the subcontractor if the general contractor secured the prime contract for the project. See id. at Such a bid condition was deemed sufficient to form a contract. The instant case presents the same basic issue. Like the subcontractor in Townsend, Florida Blacktop submitted its proposal to West on the condition that if West used Florida Blacktop s proposal, then West accepted Florida Blacktop s offer (should West be awarded the prime contract). Like the general contractor in Townsend, West used Florida Blacktop s proposal in West s submittal to the Village. Thus, West s conduct in using Florida Blacktop s conditional proposal resulted in the same contract formation as occurred in Townsend. Instead of following Townsend, the Fourth District cited non-binding case law from foreign jurisdictions for the proposition that the use of a subcontractor s bid by a prime contractor cannot constitute an acceptance of the subcontractor s offer. Opinion at 4, citing, Holman Erection Co. v. Orville E. Madsen & Sons, Inc., 330 N.W. 2d 693, 695 (Minn. 1983); Merritt-Chapman & Scott Corp. v. Gunderson Bros. Eng g. Corp., 305 F,2d 659, (9 th Cir. 1962). That foreign 6

10 case law, at least as interpreted by the Fourth District, expressly conflicts with the Townsend holding that a contract is created when a prime contractor uses a subcontractor s conditional proposal and is awarded the contract. III. THE FOURTH DISTRICT S OPINION DIRECTLY AND EXPRESSLY CONFLICTS WITH THIS COURT S RULING IN UNIVERSAL INSURANCE CO. OF NORTH AMERICA v. WARFEL, AND THE THIRD DISTRICT S RULINGS IN BRYAN v. BRYAN AND ROCA v. REPUBLIC NAT L BANK OF MIAMI A plethora of Florida cases, including this Court s decision in Universal Ins. Co. of North America v. Warfel, 82 So. 3d 47, 64 (Fla. 2012) and the Third District s decision in Bryan v. Bryan, 930 So. 2d 693, 697 (Fla. 3d DCA 2006) stand for the proposition that a party cannot invite error at trial and take advantage of that error on appeal. Here, exclusion of Florida Blacktop s expert testimony as to custom and usage, course of dealings and industry standards was not only error, but was invited error. That invited error should not be a basis for overturning the verdict. See Warfel, 82 So. 3d at 64; Bryan, 930 So. 2d at 697. The Opinion at note 3 recognized that custom and usage or course of dealings may be considered for the purpose of deciding whether a contract implied in fact has been formed 5 (citing Indus. Elec.-Seattle, Inc. v. Bosko, 410 P.2d 10, 5 At trial the term mainly used by the witnesses and attorneys was industry standards. However, the context of the testimony and discussion of industry standards makes clear that the term industry standards encompassed both industry standards and the closely related concept of custom and usage in the industry. Florida Blacktop s testimony also discussed the prior consistent course 7

11 17-18 (Wash. 1966)). Opinion at 4. However, the Opinion cites Cinghina v. Racik, 647 So. 2d 289 (Fla. 4 th DCA 1994) for the proposition that such testimony must not consist of mere conclusory statements, and concluded that Elias Shaouy s testimony (Florida Blacktop s president) standing alone was insufficient. Opinion at 4. 6 The Fourth District ignored the fact that Florida Blacktop proffered expert testimony as to that issue but was not allowed to present it because of West s objections. At trial, Florida Blacktop proffered Robert Murphy to testify to, among other things, industry standards and practices relating to bidding. Counsel for West opposed that testimony, and successfully persuaded the trial judge that such testimony was irrelevant and unnecessary, over Florida Blacktop s argument that of dealings between these parties, which included discussion of past bids where Florida Blacktop provided West a proposal, West was the low bidder and awarded the prime contract, and West awarded Florida Blacktop the subcontract. 6 The cited Cinghina opinion is inapposite because it held that conclusory testimony of adult children in a wrongful death action that they were financially dependent on their mother was not sufficient to prove that fact in the face of contradictory evidence. That case is inapplicable to custom and usage or industry standards; further, Mr. Shaouy s testimony was extensive, detailed and was not contradicted. See Dakota, Minnesota & Eastern R.R. Corp. v. Wisconsin & Southern R.R. Corp., 657 F.3d 615, 619 (7 th Cir. 2011) (any management level employee of a business engaged in a particular trade is sufficiently familiar with the custom and usage of that trade to be qualified as a lay witness to give opinion evidence). Thus, the Fourth District impermissibly substituted its view of the weight of the evidence for that of the jury. See Collins v. School Board of Broward County, 471 So. 2d 560, 563 (Fla. 4 th DCA 1985). 8

12 the testimony was intended to establish the expectations of the parties and provide industry standards and practices. Thus, West invited the error from which it now seeks to benefit. The Fourth District s allowance of such benefit expressly conflicts with Warfel and Bryan. Because the Fourth District s decision here specifically held that evidence of custom and usage, course of dealings and industry practices is relevant, but the trial court excluded Mr. Murphy s testimony on that issue, there is also direct conflict with the Third District Court s decision in Roca v. Republic Nat l. Bank of Miami, 512 So. 2d 1044, 1045 (Fla. 3d DCA 1987) (exclusion of expert testimony on industry custom and practice was reversible error). CONCLUSION This Court should exercise its discretion to review the decision of the Fourth District Court of Appeal which expressly and directly conflicts with decisions of this Court and of the First and Third District Courts of Appeal. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via and U.S. Mail to: Mr. Allen R. Tomlinson, Jones, Foster, Johnston & Stubbs, P.A., 505 South Flagler Drive, Suite 1100, West Palm Beach, FL 33402, Mr. Larry A. Klein, Holland & Knight, LLP, 222 Lakeview Avenue, Suite 1000, West Palm Beach, FL 33401, Francisco Touron, III, Touron Law,

13 Bird Road, Suite 302, Miami, FL 33146, and Eric B. Travers, Kegler, Brown, Hill, & Rittter, L.P.A., 65 East State Street, Suite 1800, Columbus, OH on this 19 th day of July, By: /s/ Joseph W. Lawrence, II. JOSEPH W. LAWRENCE, II MIKE PISCITELLI CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the foregoing brief, submitted in 14 point Times New Roman, complies with the font standards of Florida Rule of Appellate Procedure and Supreme Court of Florida Administrative Order No.: By: /s/ Joseph W. Lawrence, II. JOSEPH W. LAWRENCE, II MIKE PISCITELLI 10

14 APPENDIX A. Opinion of the Fourth District Court of Appeal Dated April 25, 2012.