ACT SERVICES v. SCH. BD. OF MIAMI-DADE CTY.

• Court: Florida District Court of Appeals
• Writing for the Court: COPE, WELLS, and SALTER, JJ
• Citation: ACT Servs. Inc. v. Sch. Bd. of Miami-Dade Cnty., 29 So.3d 450 (Fla. App. 2010)
• Decision Date: 10 March 2010
• Docket Number: No. 3D09-2879.,3D09-2879.
• Parties: ACT SERVICES, INC., et al., Petitioners, v. SCHOOL BOARD OF MIAMI-DADE COUNTY, Respondent.

29 So.3d 450

ACT SERVICES, INC., et al., Petitioners, v. SCHOOL BOARD OF MIAMI-DADE COUNTY, Respondent.

No. 3D09-2879.

District Court of Appeal of Florida, Third District.

March 10, 2010.

Restani, Dittmar & Hauser, and Helen Ann Hauser, Coral Gables; Robert A. Bauman and Robert E. Morris, Tampa, for petitioners.

Tew Cardenas, and Joseph A. DeMaria and Brett M. Halsey, Miami, for respondent.

Before COPE, WELLS, and SALTER, JJ.

SALTER, J.

A general contractor, ACT Services, Inc., and its surety, The American Insurance Company (AIC), seek a writ of certiorari regarding a trial court order severing for separate trials the School Board of Miami-Dade County's claims against the petitioners. Because the issues and facts involved in each set of claims overlap and are intertwined, we grant the petition and vacate that portion of the order severing the claims for separate trials.

From commencement in mid-2006 through early 2009, the underlying lawsuit (by the School Board as plaintiff) proceeded as a garden variety set of claims regarding the construction of an elementary school. ACT Services filed third-party claims against various subcontractors, and a typical set of cross-claims for indemnification and breach followed as well. Non-binding arbitration was unsuccessful. In April 2009, the School Board noticed the case for trial. Shortly after that, it filed a notice of status conference in which it requested the entry of "a scheduling order severing its breach of contract claim against AIC from the other claims at issue." The School Board sought to proceed against the surety, AIC, in the first trial, with the apparent goal that all other claims and cross-claims could then be sorted out among the other parties in a second, separate trial. AIC, ACT, and a sub-contractor objected to severance, asserting that the severance as proposed by the School Board would result "in a multiplicity of trials, issues, and repetition regarding the facts and circumstances surrounding the claims of the School Board." The School Board's request was heard by the trial court at the status conference, and the trial court entered an order which, among other things, granted the School Board's request for separate trials pursuant to Florida Rule of Civil Procedure 1.270(b). The order specified that a separate trial of the School Board's claim against AIC as surety would be scheduled, but it also provided that "ACT Services, Inc. shall be permitted to participate in the trial to present defenses to Plaintiff's Complaint."

We exercise our discretion to grant certiorari review only when there has been a departure from the essential requirements of law or a failure to afford procedural process; if the former, the departure from the essential requirements of law must constitute a "violation of a clearly established principle of law resulting in a miscarriage of justice." Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla. 2003). The problem with the severance of claims against the surety from claims against the contractor is that those claims clearly overlap and are intertwined. Allowing the contractor's witnesses (in the trial of the claims against the surety) to "participate in the trial to present defenses" is tantamount to a combined trial rather than a severance.¹

In Bethany Evangelical Church v. Calandra, 994 So.2d 478 (Fla. 3d DCA 2008), we granted a petition for certiorari for similar reasons. In that case, a parent sued a church school teacher, the local church itself, a regional church organization,...