IN THE SUPREME COURT OF FLORIDA CASE NO.: SC07-1027 (Florida Fifth District Court of Appeals Case No. 5D05-2755) (Circuit Court, 7 th Judicial Circuit, Volusia County, Florida; Case No. 2001-30503-CICI) HOSPITAL BUILDING AND EQUIPMENT COMPANY AND HBE-FLORIDA CORPORATION, vs. Petitioners, HIGHTOWER GEOTECHNICAL SERVICES INC., Respondent. ON NOTICE INVOKING JURISDICTION TO REVIEW A DECISION OF THE FLORIDA FIFTH DISTRICT COURT OF APPEAL PETITIONERS, HBE-FLORIDA CORPORATION AND HOSPITAL BUILDING & EQUIPMENT COMPANY, AMENDED BRIEF ON JURISDICTION F. Eugene Atwood, Jr. Florida Bar No. 0133078 Cheryl L. Worman Florida Bar No. 987042 ROGERS TOWERS, P.A. 1301 Riverplace Boulevard, Suite 1500 Jacksonville, Florida 32207 (904) 398-3911 Attorneys for Petitioners
TABLE OF CONTENTS Page TABLE OF CONTENTS...i TABLE OF AUTHORITIES...ii REFERENCES...iii STATEMENT OF THE CASE AND FACTS...1 SUMMARY OF ARGUMENT...4 ARGUMENT...5 I. THE FIFTH DISTRICT S DECISION EXPRESSLY AND...5 DIRECTLY CONFLICTS WITH THIS COURT S DECISION IN POVIA v. MELVIN. 66 So.2d 494 (Fla. 1953), ALONG WITH OTHER APPELLATE COURTS THAT HOLD AN APPELLATE COURT IS NOT AUTHORIZAED TO REWEIGH EVIDENCE OR SUBSTITUTE ITS JUDGMENT FOR THAT OF THE TRIAL COURT. II. III. AN APPELLATE COURT IS NOT AUTHORIZED...6 TO REWEIGH EVIDENCE OR SUBSTITUTE ITS JUDGMENT FOR THAT OF THE TRIAL COURT THIS COURT HAS DISCRETIONARY JURISDICTION...8 OVER THIS MATTER WHICH SHOULD BE EXERCISED CONCLUSION... 10 CERTIFICATE OF SERVICE... 11 CERTIFICATE OF COMPLIANCE... 11 DocNo -i-
TABLE OF AUTHORITIES Cases Page Centex-Rooney Construction Co. v. Martin County,...7 706 So. 2d 20, 27 (Fla. 4th DCA 1997) Cripe v. Atlantic First Nat l Bank of Daytona Beach,... 9, 10 422 So. 2d 820, 821 (Fla. 1982) Delgado v. Strong,...9 360 So. 2d 73 (Fla. 1978) Marshall v. Johnson,...8, 9, 10 392 So. 2d 249, 250 (Fla. 1981) Povia v. Melvin,... i, 5, 6 66 So. 2d 494, 494-495 (Fla. 1953) Shaw v. Shaw,...9 334 So. 2d 13 (Fla. 1976) Stevens v. Cricket Club Condominium, Inc.,...6 784 So. 2d 517, 518 (Fla. 3d DCA 2001) Westerman v. Shell s City, Inc.,...9 265 So. 2d (Fla 1972) Withers v. Flagship Peoples Bank of Tallahassee,... 5, 6 473 So. 2d 789, 789-790 (Fla. 1st DCA 1985) DocNo -ii-
REFERENCES Petitioner uses the following conventions when referring to either parties or certain pleadings throughout the brief: Hospital Building and Equipment Company = HBE HBE-Florida Corporation = HBE-Fla Hightower Geotechnical Services, Inc. = Hightower Opinion of the Florida Fifth District Court of Appeals = A or Opinion DocNo -iii-
STATEMENT OF THE CASE AND FACTS The dispute underlying this appeal arises from a construction subcontract between HBE and Hightower. HBE-Fla. hired HBE to construct an addition onto an Adam s Mark Hotel. A.2. HBE in turn subcontracted with Hightower to perform chemical grout stabilization to support the existing structure while the addition was built. A.2. The subcontract contained a performance specification which required Hightower to create a solidified mass using chemical grout of a specific size and density to stabilize the existing structure. The subcontract was a unit price contract under which HBE agreed to pay Hightower for the chemical grout needed to create the solidified mass at set rates per gallon, leaving the final value of the subcontract for later determination based on the quantity of contractconforming grout pumped by Hightower. Hightower performed chemical grouting on the site from February 2000 through November 2000. In late August 2000, the parties discovered that portions of the grouting were defective and had not formed the required solidified mass. Hightower then hired an expert that recommended specific procedures to address the structural problems with Hightower s application of the grout. Following these recommendations, Hightower continued to apply grout to the site, but failed to utilize most of the recommended procedures. By November 2000, Hightower had applied chemical grout to all of the -1-
areas of the project required by the subcontract to receive chemical grout stabilization. On November 14, 2000, while HBE was working on the job site, the grout below a stair tower sagged causing the area to become unstable and the stair tower to begin shifting. When the failed grout was inspected, HBE found that the grout was defectively applied and did not constitute the size and density of the solidified mass required by the subcontract. Additionally, HBE located other nearby areas where the grout was also defective. On November 16, 2000, HBE terminated Hightower for failing to provide grout that conformed with the project specifications. Hightower did not return to the project, but did send HBE an invoice for $141,791.80 for grout that it had injected on the site in October and November. Following Hightower s termination from the project, HBE hired another subcontractor (the Repairing Contractor ) to stabilize the soil, secure the stair tower, and repair the damages caused by Hightower s defective work. The Repairing Contractor did not use chemical grout stabilization. HBE refused to pay two of Hightower s invoices based on the defective work and Hightower filed a complaint against HBE and HBE-Florida seeking to establish and foreclose a construction lien on the hotel property and for breach of contract. A.2. In its complaint, Hightower claimed that it was owed additional monies, including retainage and unpaid contract sums in addition to the -2-
$238,075.20 that it had already been paid by HBE. A.2. HBE filed a counterclaim against Hightower for the cost of resequencing the construction and the cost of the repairs required to stabilize the stair tower. Following a seven day bench trial, the trial court held that Hightower had materially breached the subcontract by failing to achieve the required solidified mass and was not entitled to be paid the outstanding invoice for work performed around the stair tower. The court then found in favor of HBE on its claim for damages for its costs to repair the damage to the foundation at the existing stair tower and along the north wall of the existing hotel which were caused by Hightower s defective grout installation. This finding was based on the testimony of several witnesses, and the court specifically held, [w]hile [Hightower] has asserted that the work performed by [the Repairing Contractor] did not complete work under the Subcontract, there can be no doubt that the work was required to repair the damage to the foundation system at the existing stair tower and along the north wall of the existing hotel. The court awarded HBE its actual repair costs of $79,894.00 with mark-up ($11,984.10) for administrative services. The court s holding resulted in a net judgment in favor of HBE in the amount of $86,503.00. Following the trial court s Final Judgment, Hightower filed a motion to amend the final judgment, arguing in part that the appropriate measure of damages was the difference between the contract price and the reasonable cost to complete -3-
the improvements in accordance with the contract. Hightower argued that the contract price was the full $379,867.00 for which Hightower had invoiced HBE. In denying Hightower s motion, the court reiterated that the contract was a unit price contract rather than a lump sum contract and therefore the value of the contract was determined by the quantity of conforming grout actually pumped by Hightower. The court went on to specifically hold that the actual subcontract value was $243,450.30, and that there was no evidence that $243,450.30 was not a fair market value for full performance of the subcontract to specifications. Hightower then appealed the Final Judgment, arguing that HBE was not entitled to recover its damages. A.3. On appeal, the Fifth DCA reversed the trial court s award of damages to HBE. A.3. The Fifth DCA concluded the that trial court erred in awarding HBE the money it expended in completing the last phase of the project after Hightower was removed from the job. A.3. The court reasoned that since HBE was not required to pay Hightower for any of the work it performed on the last phase, it could not recover the money it paid another subcontractor to complete that phase, without improperly receiving a double recovery. A.3. SUMMARY OF ARGUMENT An appellate court may not substitute its judgment for that of the trial court on issues of fact. By ignoring the trial court s factual finding that HBE was entitled to damages for the cost of repairing, rather than completing Hightower s -4-
work, the Opinion expressly and directly conflicts with decisions of this Court and other district courts. As the Opinion violates a well-established tenet of law, this Court should exercise its discretionary jurisdiction to review the Opinion. ARGUMENT I. THE FIFTH DISTRICT S DECISION EXPRESSLY AND DIRECTLY CONFLICTS WITH THIS COURT S DECISION IN POVIA v. MELVIN, 66 So.2d 494 (FLA. 1953), ALONG WITH OTHER APPELLATE COURTS THAT HOLD AN APPELLATE COURT IS NOT AUTHORIZED TO REWEIGH EVIDENCE OR SUBSTITUTE ITS JUDGMENT FOR THAT OF THE TRIAL COURT It is a basic tenet of Florida law that an appellate court is not authorized to reweigh evidence or substitute its judgment for that of the trial court. In Povia v. Melvin, 66 So. 2d 494, 494-495 (Fla. 1953), the defendant in a personal injury case appealed a judgment in favor of the plaintiff and asked this Court to find as a matter of law that the plaintiff s acts constituted contributory negligence. Despite sharply conflicting evidence, the Court refused to overturn the factual findings of the trial court absent an error in the manner in which the question of negligence was submitted to the fact-finder. Id. In refusing to re-weigh the evidence, the Court stated, [n]o authorities need be cited for the proposition that this court is not authorized to substitute its judgment for that of the jury and the trial court on disputed questions of fact. Id. This same principle has also been applied by the District Courts of Appeal. -5-
In Withers v. Flagship Peoples Bank of Tallahassee, 473 So. 2d 789, 789-790 (Fla. 1st DCA 1985), the First DCA was asked to determine whether the trial court s conclusion of the fair market value of property sold at a foreclosure sale was against the manifest weight of the evidence. In affirming the trial court s factual findings, the court held, [a]s an appellate court, it is not our function to review the weight of the evidence but, rather, to review the record to determine if it contains competent, substantial evidence to support the trial court s ruling. Id. at 791. Similarly, in Stevens v. Cricket Club Condominium, Inc., 784 So. 2d 517, 518 (Fla. 3d DCA 2001), the plaintiff appealed from a judgment awarding him $1 in damages. The court found that the plaintiff sustained his burden of proof, but failed to prove damages. Id. The court affirmed the trial court s determination of damages, stating, [a]s an appellate court, it is not our function to reweigh the evidence but, rather, to view the record to determine if it contains competent and substantial evidence to support the conclusions of the trier of fact. Id. II. AN APPELLATE COURT IS NOT AUTHORIZED TO REWEIGH EVIDENCE OR SUBSTITUTE ITS JUDGMENT FOR THAT OF THE TRIAL COURT. In rendering its Opinion, the Fifth DCA creates an express and direct conflict with the Povia, Withers, and Stevens cases by re-weighing the evidence, ignoring the factual findings of the trial court, and substituting its judgment for that of the trial court on questions of fact. In its Final Judgment, the court awarded -6-
damages to HBE for the costs it incurred to repair the damage caused by Hightower s defective work. The trial court clearly found, based on the testimony of several witnesses and the documents in evidence, that the work performed by the Repairing Contractor was for repair and not completion of work performed by Hightower. In fact, at the time the Repairing Contractor performed its work, Hightower had already completed its work by injecting the chemical grout into all of the required areas on the project. The trial punctuated its finding that the damages were for repair work by citing to Centex-Rooney Construction Co. v. Martin County, 706 So. 2d 20, 27 (Fla. 4th DCA 1997), in its decision, for the proposition that a party may recover damages for the reasonable cost of performing repairs in conformance with the original contract s requirements. The trial court further explained its factual findings of HBE s damages in its Order Denying Motion to Amend Final Judgment. In the Order, the trial court determined that the final value of the subcontract between Hightower and HBE was $243,450.30. This is the same amount which HBE had already paid Hightower for its work on the project. Accordingly, the trial court awarded HBE its damages of $91,878.10, which constituted the cost of repairing Hightower s defective work. As the trial court determined that the contract value was $243,450.30, the amount paid by HBE, the repair damages were necessarily in excess of the value of the subcontract as determined by the court. -7-
In rendering its Opinion, the Fifth DCA ignores the factual findings of the trial court and reweighs the evidence, holding that the trial court erred in awarding HBE the money it expended in completing the project after Hightower was removed from the job. A.3. (emphasis added). This statement contradicts the factual findings of the trial court that it was awarding HBE the money expended to repair the completed work performed by Hightower. The Fifth DCA bases its Opinion on the premise that since HBE was not required to pay Hightower for the work it performed in the last phase, to award HBE the money it paid another contractor to complete the phase would create a double recovery. A.3. However, to arrive at this conclusion, the Fifth DCA has substituted its judgment for that of the trial court. To determine that the award creates a double recovery, the Fifth DCA must ignore the trial court s finding that the value of the subcontract was $243,450.30, and instead accept the evidence offered by Hightower at trial that the contract value was $379,867.00. Because the Fifth DCA reweighs the evidence, ignores the factual findings of the trial court, and substitutes its judgment for that of the trial court on questions of fact, its decision creates a direct and express conflict with the cases cited above. III. THIS COURT HAS DISCRETIONARY JURISDICTION OVER THIS MATTER WHICH SHOULD BE EXERCISED Where a district court has violated the rule against improperly substituting its judgment for that of the factfinder, this Court has conflict jurisdiction which it -8-
has historically exercised in cases such as this. In Marshall v. Johnson, 392 So. 2d 249, 250 (Fla. 1981), the Court accepted jurisdiction, holding that the district court improperly substituted its judgment for that of the factfinder by reevaluating the evidence, thus conflicting with our decisions in Delgado v. Strong, 360 So. 2d 73 (Fla. 1978); Shaw v. Shaw, 334 So. 2d 13 (Fla. 1976); Westerman v. Shell s City, Inc., 265 So. 2d (Fla 1972). In Marshall, the Court held that the district court improperly reversed the trial court s determination of the location of a boundary line, based on its review of parol evidence presented at trial. Id. at 251. Cripe v. Atlantic First Nat l Bank of Daytona Beach, 422 So. 2d 820, 821 (Fla. 1982), is another example where this Court exercised conflict jurisdiction to review the decision of a district court of appeal that had the effect of improperly disregarding the trial court s findings of fact. In Cripe, the plaintiff brought an action to recover funds from the defendants on the grounds that they were obtained by undue influence. Id. at 821-822. The trial court found in favor of the defendants, but made no findings of fact or conclusions of law in its judgment. Id. at 822. On appeal, the district court reversed, finding that there was undue influence. Id. The Court quashed the district court s opinion in part and approved in part, holding that where there was sufficient evidence for the trial court to conclude that the plaintiff was not entitled to relief, the district court incorrectly substituted its judgment for that of the trial court. Id. at 823. -9-
These cases are illustrative of the longstanding rule that an appellate court may not disregard a trial court s findings of fact or reweigh the evidence presented to the trial court. The Fifth DCA s decision in this case expressly and directly conflicts with this entire line of cases and therefore this Court has jurisdiction to review this decision. To allow the Fifth DCA s opinion to stand in direct conflict with this body of case law would create confusion and serve substantial injustice. As in Marshall and Cripe, the Court s exercise of its discretion to review this case is not only permissible, but appropriate under the circumstances. CONCLUSION For the reasons and under the authorities discussed hereinabove, Petitioners HBE-Florida Corporation and Hospital Building & Equipment Company respectfully request that this Court exercise its discretionary jurisdiction to review the decision of the Florida Fifth District Court of Appeal rendered in this case below. By: F. Eugene Atwood Florida Bar No. 0133078 Cheryl L. Worman Florida Bar No. 987042 ROGERS TOWERS, P.A. 1301 Riverplace Boulevard, Suite 1500 Jacksonville, Florida 32207 (904) 398-3911 Attorneys for Petitioners -10-
CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been furnished to Dudley D. Birder, Jr., Esquire, Birder Law Offices, P.A., 6224 N.W. 43rd Street, Suite B, Gainesville, Florida 32653; Roseanne Perrine, Esquire 3010 South Third Street, Jacksonville Beach, Florida 32250; and Harold S. Lippes, Esquire, One Enterprise Center, 225 Water Street, Suite 2100, Jacksonville, Florida 32202 by Federal Express this 29th day of June, 2007. Attorney CERTIFICATE OF COMPLIANCE I hereby certify that this computer-generated Notice Invoking Jurisdiction to Review a Decision of the Florida Fourth District Court of Appeal To The Florida Supreme Court complies with Rule 9.210, Fla. R. App. P., in that this document is typed in Times New Roman 14-point font. By: F. Eugene Atwood Florida Bar No. 0133078 Cheryl L. Worman Florida Bar No. 987042 ROGERS TOWERS, P.A. 1301 Riverplace Boulevard, Suite 1500 Jacksonville, Florida 32207 (904) 398-3911 Attorneys for Petitioners -11-