Destiny Const. Co. v. Martin K. Eby Const.

• Decision Date: 03 November 1995
• Docket Number: No. 94-2579,94-2579
• Citation: 662 So.2d 388
• Parties: 20 Fla. L. Weekly D2456 DESTINY CONSTRUCTION COMPANY, Appellant, v. MARTIN K. EBY CONSTRUCTION, etc., et al., Appellee.
• Court: Florida District Court of Appeals

Page 388

662 So.2d 388

20 Fla. L. Weekly D2456

DESTINY CONSTRUCTION COMPANY, Appellant, v. MARTIN K. EBY CONSTRUCTION, etc., et al., Appellee.

No. 94-2579.

District Court of Appeal of Florida Fifth District.

Nov. 3, 1995.

Nevin A. Weiner of Livingston, Patterson, Strickland & Weiner, P.A., Sarasota, for appellant.

John R. Hamilton of Foley & Lardner, Orlando, for appellees.

ANTOON, Judge.

Destiny Construction Company (Destiny) sued Martin Eby Construction Company (Eby) and Eby's surety, Federal Insurance Company, for breach of a construction contract. Destiny appeals the trial court's final summary judgment in favor of Eby. We reverse.

Eby entered into a contract with the City of Orlando to expand and improve a water pollution control facility. Eby later entered into a subcontract with Destiny, an underground utilities subcontractor, to install underground piping. Destiny's complaint alleges that Eby breached the subcontract by failing to make timely payments to Destiny as required by the contract, and to compensate Destiny for delays in performance caused by Eby. The complaint, seeking $1,187,592 in damages, consists of three counts--suit on the payment bond, breach of contract, and quantum meruit.

At the conclusion of discovery, Eby filed two motions seeking summary judgment. Eby argued that Destiny's complaint should be stricken and summary judgment entered because the complaint was a sham pleading, ¹ and no genuine issues of material fact existed. ² In support of both motions, Eby asserted the position that summary judgment was appropriate because the record demonstrated that the subcontract price was $1,407,942, while the costs expended by Destiny in performance of the subcontract, as established by Destiny's records and verified by its accountant, were only $1,232,964, resulting in a profit to Destiny of $181,823.

In opposition to the motions, Destiny submitted the affidavit of the president of Destiny Construction Company, who explained that Destiny's claim of breach of contract was viable because, while the original subcontract anticipated a twelve-month work schedule, Destiny was actually on the project site for twenty-four months due to Eby's delays which resulted in more than twice the crew days required by the original subcontract, as well as additional overhead expenses. Destiny also submitted the affidavit of a construction management consultant and claims specialist, who, after reviewing Destiny's records, opined that Destiny had been required to "incur significant cost overruns." The consultant went on to testify that equipment and home office overhead costs had not been included in the documentation relied upon by Destiny's accountant. While not giving an exact amount of the damages suffered by Destiny, it was the consultant's opinion that Destiny had a "valid and substantial claim" against Eby in excess of $2.6 million due to cost overruns caused by Eby, and Eby's failure to pay Destiny in accordance with the terms of the subcontract. Finally, in opposition to Eby's motions, Destiny offered the affidavit of a certified public accountant (CPA), specializing in accounting for construction contractors and subcontractors, who had reviewed the report compiled by the construction management consultant and the deposition of Destiny's accountant. It was the CPA's opinion that the consultant's summary was appropriate and that it was possible that the methods used by Destiny's accountant to develop its financial statements did not accurately reflect the actual and consequential costs incurred by Destiny on the project.

At the conclusion of the hearing on the motions for summary judgment, the trial court found that there was no issue as to any material fact and granted both the motion to strike as sham, and the motion for summary judgment. A summary final judgment was then entered in favor of Eby, and this appeal timely followed.

The first issue is whether the trial court erred in striking Destiny's complaint as a sham and entering a summary judgment in favor of Eby on the merits. Because striking a pleading is an extreme measure, it is not favored in the law. Slatko v. Virgin, 328 So.2d 499, 500 (Fla. 3d DCA 1976). In order to warrant the rejection of a pleading as a "sham plea," the pleading must be a mere pretense, set up in bad faith and without color of fact. Ader v. Temple Ner Tamid, 339 So.2d 268, 270 (Fla. 3d DCA 1976). Accord Meadows v. Edwards, 82 So.2d 733 (Fla.1955); Sapienza v. Karland, Inc., 154 So.2d 204 (Fla. 3d DCA 1963). In other words, a plea is considered a sham when it is inherently false and, based on plain or conceded facts, clearly known to be false at the time the pleading was made. Menke v. Southland Specialties Corp., 637 So.2d 285 (Fla. 2nd DCA 1994); West Palm Golf Commission v. Adams, 633 So.2d 568 (Fla. 4th DCA 1994). In ruling upon a motion to strike, the trial court must resolve all doubts in favor of the pleading. Meadows, 82 So.2d at 735...