Frenz Enterprises, Inc. v. Port Everglades, 98-4252.
| Decision Date | 24 November 1999 |
| Docket Number | No. 98-4252.,98-4252. |
| Citation | 746 So.2d 498 |
| Parties | FRENZ ENTERPRISES, INC., Appellant, v. PORT EVERGLADES, a Department of Broward County, and Broward County, Florida, Appellees. |
| Court | Florida District Court of Appeals |
Dante Mattioni and Stephen M. Martin of Mattioni, Ltd., Philadelphia, Pennsylvania, and Garland Hogan, Lazy Lake, for appellant.
Edward A. Dion and Tamara M. Scrudders, Fort Lauderdale, for appellees.
Frenz Enterprises, Inc., (Frenz) appeals a final judgment awarding it $32,662.86 on its claim against Port Everglades and Broward County (the Port) seeking compensation for its dredging of Slip 3 in the Port. Frenz presents nine issues on appeal, alleging error in the trial court's grant of a directed verdict in favor of the Port on several counts, its failure to conform the pleadings to the evidence, its limitation of recovery, its refusal to instruct the jury on lost profits, and its denial of Frenz's motion for directed verdict as to the Port's counterclaim. We find no error and affirm.
Frenz was the successful bidder on a project to dredge 7,000 cubic yards of "unclassified" material from Slip 3 in the Port to a distance of—38 ft. Mean Low Water (MLW). The Port's Instructions to Bidders required each bidder to visit the site to become acquainted with the existing conditions, and then to acknowledge that the bidder was satisfied as to the nature and location of the work. According to the instructions, a contractor's failure to become acquainted with all available information concerning these conditions would not relieve the contractor from responsibility for properly estimating the difficulty or cost of performing the work. Frenz submitted a signed statement with its bid, in which it acknowledged it had examined the site of the work and informed itself fully of all conditions pertaining to the place where the work was to be completed.
As the successful bidder, Frenz executed a contract with the Port containing a provision that described the material to be dredged was "unclassified," and stated the material "vari[ed] as to depth, formation and hardness." The work included removal of material "of whatever kind encountered, including anything lost or sunk or any debris not otherwise listed or classified." The contract included pre-inspection clauses that placed the burden on the contractor "to examine the site and make such tests and borings and decide for himself the character of the material and difficulties which may be encountered in dredging." By executing the contract, Frenz acknowledged it was satisfied regarding the nature and extent of the work and had correlated its study and observations of the site with the requirements of the contract documents. According to the contract, failure to properly evaluate any cost factors prior to bidding would not form the basis for additional compensation.
The contract provided the parties understood the quantities proposed on the Schedule of Prices were estimates for the purpose of bid comparison, and the contractor was to be compensated based on actual quantities of work performed as measured by the Port's engineer. The Port would conduct an initial survey at the start of the project and a final survey on completion of the dredging. The contractor was free to accompany the survey crew during both surveys and/or perform its own surveys.1 The total quantity of material dredged (spoil) was to be calculated by comparing the initial and final surveys. The contract also contained a clause regarding "claims for extra cost," which required the contractor to give the Port's engineer five days written notice of a claim that additional work was necessary.
Frenz ultimately sued the Port alleging four breach of contract counts regarding the Port's failure to: I) pay for 122.5 hours of lay time (down time), removal of fourteen tires, and 7900 cu. yds. of dredging; II) pay for dredging at the lip of Slip 3; III) pay for dredging of rock allegedly unanticipated by the contract; and IV) provide certification of the non-hazardous nature of the material dredged; cooperate by approving the completed job thus requiring Frenz to redredge areas where small mounds of silt began to reappear due to tugs stirring up the bottom; and abide by the contract resulting in the termination of Frenz's ability to be bonded.
At trial, Mr. Frenz testified he relied on representations the Port made to him during a pre-bid meeting regarding the condition of the soil to be dredged. The depth required of the contract was changed from -37 ft. MLW to -38 ft. MLW at the pre-bid meeting, and Mr. Frenz believed that if he dredged an extra foot, he would receive extra money. He based his bid on the Port's representation that the Slip had been dredged in 1981 to -39 ft. MLW.
Mr. Frenz testified he removed over 1,000 cu. yds. of rock from the Slip and approximately 16,000 cu. yds. of material, based on truck receipts and bills for removal. His company notified the Port it completed the project on July 24, 1994. The Port's final survey showed some high spots, and by letter dated July 25, 1994, Frenz informed the Port it thought tugs bringing ships into the slip were stirring up the bottom and moving material around. Up to July 24, Frenz had continued dredging to remove these high spots. Mr. Frenz testified his company lost its bond line as a result of the Port's actions, and was unable to bid on bonded work such that Frenz stopped operating.
At the close of Frenz's case, the Port moved for a directed verdict on all Counts. During argument, the court noted the essence of Frenz's case was that it was excused from performing under the contract due to the Port's material misrepresentations made during the pre-bid meeting regarding the soil conditions. The court noted Frenz did not plead such material misrepresentations, nor did it plead waiver of the contract term requiring written notice of additional work, or estoppel. The court granted the Port's motion for directed verdict in substantial part leaving only claims seeking compensation under the terms of the written contract for removal of additional tires, removal of additional cubic yards of spoil, and additional down time.
Frenz requested the court allow it to amend its complaint to conform to the evidence, and the court denied the motion, characterizing such an amendment as "very material." The court denied Frenz's request to instruct the jury on lost profits, which it found were not foreseeable at the time of contracting. It also refused a requested instruction that would have allowed the jury to calculate damages based on truck tickets for material removed, rather than the method prescribed by the contract of comparing the initial and final surveys.
The jury returned a verdict finding the Port breached its contract with Frenz and awarding Frenz $18,562.86 for dredged material, $18,300 for additional lay time, and $1,600 for removal of additional tires. The jury also found in favor of the Port on its counterclaim for liquidated damages and awarded Broward County $5,800.
Frenz's first Point on appeal alleges error in the court' grant of a directed verdict on Count II. When an appellate court reviews the grant of a directed verdict, it must view the evidence and all inferences of fact in a light most favorable to the nonmoving party, and can affirm a directed verdict only where no proper view of the evidence could sustain a verdict in favor of the nonmoving party. See Orsi v. All American Termite & Pest Control, Inc., 700 So.2d 425, 426 (Fla. 2d DCA 1997)
.
In Count II, Frenz alleged breach of contract based on the Port's failure to pay for additional work including dredging at the lip of Slip 3. However, the parties' contract required Frenz to provide five days written notice of a claim for additional work, which Frenz did not do.2 Despite its failure to provide the required notice, Frenz argues the court erred in directing a verdict on Count II because it adequately alleged the Port waived the required five day written notice requirement because of its misrepresentation and fraud. Frenz argues it pled misrepresentation with particularity in its complaint, relying on the use in its complaint of the terms "maintenance dredging of silt" which it argues implied dredging of only silt, and "removal of rocks." It argues the Port was on notice of a potential misrepresentation claim because fraud was mentioned in the Port's affirmative defenses and the parties' pretrial stipulation referred to the issue of waiver.
We reject Frenz's contention that it adequately alleged misrepresentation. Assuming, arguendo, the Port could be held to have waived the written notice requirement by its misrepresentations, Frenz's complaint was insufficient to put the Port on notice of such a claim. A claim...
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