AMEC Civil, LLC v. State Department of Transportation, Case No. 1D09-1211 (Fla. App. 4/20/2010)

• Decision Date: 20 April 2010
• Docket Number: Case No. 1D09-1211.
• Parties: AMEC CIVIL, LLC, Appellant, v. STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION, Appellee.
• Court: Florida District Court of Appeals

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AMEC CIVIL, LLC, Appellant, v. STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION, Appellee.

Case No. 1D09-1211.

District Court of Appeal of Florida, First District.

Opinion filed April 20, 2010.

An appeal from the Circuit Court for Duval County, Charles O. Mitchell, Judge.

F. Alan Cummings, S. Elysha Luken, and Jessica L. Slatten of Smith, Currie & Hancock, LLP, Tallahassee, for Appellant.

Alexis M. Yarbrough, General Counsel, Gregory G. Costas, Assistant General Counsel, Jackson W. Maynard, Jr., Assistant General Counsel, and Nancy J. Aliff, Assistant General Counsel, Tallahassee, for Appellee.

BENTON, J.

AMEC Civil, LLC (AMEC) asks us to overturn a judgment entered, on res judicata grounds, in favor of the Florida Department of Transportation (DOT), and to reverse the denial of partial summary judgment on AMEC's count I for declaratory relief. We affirm the judgment.

AMEC's contract with DOT to perform a major highway project established a Disputes Review Board (DRB), comprised of three construction professionals. The stated purpose of the DRB is to provide "special expertise to assist in and facilitate the timely and equitable resolution of disputes, claims, and controversies between the Department and the Contractor in an effort to avoid construction delay and future claims." With an exception not relevant here, however, recommendations of the DRB are not binding on the parties.

The contract provides that "[n]o circuit court or arbitration proceedings on any claim, or a part thereof, may be filed until after final acceptance . . . of all Contract work by the Department or denial hereunder, whichever occurs last." The contract required AMEC, upon completion of the contract, to submit all remaining claims to DOT no later than 180 days following final acceptance. Under the contract, DOT then had 120 days to review the claims and make payment or adjustments. DOT's failure to respond to a claim within 120 days was deemed a denial.

Approximately one month after work under the contract began in November of 2001, AMEC claimed DOT breached the contract by failing to obtain permits which AMEC said were necessary for it to work at night (and cause noise in excess of otherwise applicable limits set by Jacksonville city ordinances). This claim was eventually submitted to the DRB but the parties did not accept the DRB's recommendation. Instead, AMEC brought suit for breach of contract in circuit court in August of 2003 (Night Work Lawsuit).

AMEC continued work on the project, not only during the DRB's consideration¹ of the claims that led to the Night Work Lawsuit, but also after filing the Night Work Lawsuit, which was still pending when DOT issued final acceptance of the construction project in May of 2006. Upon final acceptance, AMEC submitted for DRB review² all claims that had not been submitted previously. On October 31, 2006, AMEC provided DOT with a comprehensive list of the contractual breaches it had alleged and the adjustments to which it deemed itself entitled.

Beginning in December of 2006, DOT repeatedly but unsuccessfully sought continuances in and stays of the Night Work Lawsuit, notably on grounds that all claimed breaches of the parties' contract should be adjudicated in a single lawsuit.³ The Night Work Lawsuit went forward nevertheless and concluded, in October of 2007, when, after a jury trial, judgment was entered in favor of AMEC in the amount of $8.5 million. By this time, the DRB had made recommendations in some of AMEC's remaining claims, as to entitlement but not as to quantum, and others had not been heard by the DRB.⁴ After judgment was entered against it in the Night Work Lawsuit, DOT took the position it was no longer obligated to go before the DRB because its liability under the contract had been fully adjudicated.

Initiating the present case, AMEC filed a complaint in circuit court in February of 2008, and filed an amended complaint on October 8, 2008. The amended complaint describes the parties' contract as one for "construction and reconstruction of certain major interstate interchanges and state roads within the city limits of Jacksonville, Florida." Count I alleges DOT's refusal to go forward with the DRB process and seeks declaratory judgment regarding AMEC's rights and obligations under the portion of the contract establishing the DRB process. The remaining counts allege sundry, specific breaches of contract.

In due course, DOT filed a motion for final summary judgment, contending the present action was barred by res judicata, given the judgment against it awarding AMEC damages for breach of contract in the Night Work Lawsuit; and invoking the rule against splitting causes of action. "The doctrine of splitting a cause of action is related to res judicata in that it `requires that all damages sustained or accruing to one as a result of a single wrongful act must be claimed and recovered in one action or not at all.' For purposes of this doctrine, the `cause of action' is . . . `the right which a party has to institute a judicial proceeding.'" Zamora v. Fla. Atl. Univ. Bd. of Trs., 969 So. 2d 1108, 1112 (Fla. 4th DCA 2007) (quoting Tyson v. Viacom, 890 So. 2d 1205 (Fla. 4th DCA 2005) (boldface omitted)).

AMEC filed a motion for partial summary judgment as to count I of its complaint, asking the trial court for a declaration that it could sue for damages without participating in DRB proceedings. The trial court denied AMEC's motion for partial summary judgment,⁵ dismissed AMEC's second lawsuit as barred under the doctrine of res judicata, and entered the final summary judgment in favor of DOT now before us.

We review summary judgments de novo. See Futch v. Wal-Mart Stores, Inc., 988 So. 2d 687, 690 (Fla. 1st DCA 2008) ("In reviewing an order granting final summary judgment by the trial court, this court applies the de novo standard of review to determine whether there are genuine issues of material fact and whether the trial court properly applied the correct rule of law." (citing Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000)); Cox v. CSX Intermodal, Inc., 732 So. 2d 1092, 1095-96 (Fla. 1st DCA 1999) ("When a defendant moves for summary judgment, `[t]he function of the court is solely to determine whether the . . . record presented in support of summary judgment conclusively shows that the plaintiff cannot prove the claim alleged as a matter of law.'" (quoting Hervey v. Alfonso, 650 So. 2d 644, 646 (Fla. 2d DCA 1995))). At issue here is application of the doctrine of res judicata.

"The doctrine of res judicata makes a judgment on the merits conclusive `not only as to every matter which was offered and received to sustain or defeat the claim, but as to every other matter which might with propriety have been litigated and determined in that action.' Kimbrell v. Paige, 448 So. 2d 1009, 1012 (Fla. 1984)." Zamora, 969 So. 2d at 1112. See also Saadeh v. Stanton Rowing Found., Inc., 912 So. 2d 28, 31 (Fla. 1st DCA 2005) (noting that "[r]es judicata extends only to the facts and conditions as they existed at the time the prior court rendered the prior judgment"); Hicks v. Hoagland, 953 So. 2d 695, 698 (Fla. 5th DCA 2007) (holding that the "record also establishes identity of cause of action. The facts and issues supporting the underlying transaction—a $2.5 million promissory note executed in June 1998 and the alleged default in 2001—existed at the time the Illinois state court rendered the prior judgment"); Gaither Corp. v. Skinner, 85 S.E.2d 909, 912 (N.C. 1955) (barring subsequent action for discrete breach of "an entire and indivisible" building contract based on defects in roof discovered prior to entry of initial consent judgment, but after filing of the initial action for breach on grounds subsequent action was an "attempt[] to relitigate the same cause of action by seeking damages for another item of the alleged breach").

Courts properly look not only to the claims actually litigated in the first suit, but also to "`every other matter which the parties might have litigated and had determined, within the issues as [framed] by the pleadings or as incident to or essentially connected with the subject matter' of the first litigation." Zikofsky v. Marketing 10, Inc., 904 So. 2d 520, 523 (Fla. 4th DCA 2005) (quoting Tyson v. Viacom, Inc., 890 So. 2d 1205, 1214 (Fla. 4th DCA 2005) (en banc) (Gross, J., concurring specially)). (1) When a valid and final judgment rendered in an action extinguishes the plaintiff's claim pursuant to the rules of merger or bar ..., the claim extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose.

(2) What factual grouping constitutes a "transaction", and what groupings constitute a "series", are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage.

Restatement (Second) of Judgments § 24 at 196 (1982).⁶ Res judicata bars a subsequent lawsuit when there is: (1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of the parties; and (4) identity of the quality in the person for or against whom the claim is made. See Albrecht v. State, 444 So. 2d 8, 12 (Fla. 1984), superseded by statute on other grounds as stated in Bowen v. Fla. Dep't. of Envtl. Regulation, 448 So. 2d 566, 568-69 (Fla. 2d DCA 1984); Pfeiffer v. Roux Labs., Inc., 547 So. 2d 1271, 1272-73 (Fla. 1st DCA 1989).

Two of the conditions necessary for application of the doctrine of res judicata, the identity of the parties and the identity of the capacities in which they sued and were sued, are not in dispute. AMEC argues, however,...