Jacquin-Florida Distilling Co. v. Reynolds, Smith and Hills, Architects-Engineers-Planners, Inc., JACQUIN-FLORIDA

• Decision Date: 10 October 1975
• Docket Number: No. X--302,JACQUIN-FLORIDA,ARCHITECTS-ENGINEERS-PLANNER,INCORPORATED,X--302
• Citation: 319 So.2d 604
• Parties: DISTILLING COMPANY, a Florida Corporation, Appellant, v. REYNOLDS, SMITH AND HILLS,, a Florida Corporation, Appellee.
• Court: Florida District Court of Appeals

Page 604

319 So.2d 604

JACQUIN-FLORIDA DISTILLING COMPANY, a Florida Corporation, Appellant, v. REYNOLDS, SMITH AND HILLS, ARCHITECTS-ENGINEERS-PLANNERS, INCORPORATED, a Florida Corporation, Appellee.

No. X--302.

District Court of Appeal of Florida, First District.

Oct. 10, 1975.

James A. Bledsoe, Jr., and Dana G. Bradford, II, Mahoney, Hadlow, Chambers & Adams, Jacksonville, for appellant.

David W. Carstetter, Kent, Sears, Durden & Kent, Jacksonville, for appellee.

SMITH, Judge.

Jacquin-Florida Distilling Company appeals from a judgment against it in the amount of $14,391.75, without interest or costs, on a claim by Reynolds, Smith and Hills, Architects-Engineers-Planners, Incorporated (RS&H), for fees earned and disbursements made under a contract to provide engineering services necessary to the modification of the waste treatment process at Jacquin's Auburndale distillery to comply with urgent State requirements. Upon waiver of jury trial, the lower court as trier of the facts entered judgment for RS&H in the amount of its unpaid statements, but declined to allow interest and costs to RS&H, which has cross-assigned error in that ruling.

Jacquin paid only the first RS&H invoice in the amount of $397.78 and refused to pay several others, aggregating the amount of the judgment, when controversy arose over the amount of a $9,500 charge for labor, materials and laboratory reports incident to the installation of a small pilot plant do collect data at the distillery for less than a month during December 1972.

The printed of contract ¹ which the parties signed at the instance of RS&H did not identify, except in generalities consistent with all conceivable projects but descriptive of none, the engineering services to be rendered and paid for. The provision for Jacquin's payment of fees in the amount of RS&H payroll costs times a factor of 2.5, when considered with the uncertainty of the extent of services contracted for, would make it difficult for either owner or engineer to predict at the outset of the engagement the extent of the owner's obligation for engineering fees. Yet, as though to balance the burden of this uncertainty, the contract placed firmly in Jacquin's hands a recurring right to end RS&H's services at logical intervals. Thus, the contract divides the undertaking into three distinct design phases of schematic planning, preliminary design and final design, each of which begins only on the owner's 'written authorization to proceed' and ends with the engineer's submission of design documents appropriate to that phase and updated estimates of the project costs excluding engineering services. At the completion of the third or final design phase, the contract contemplates that the engineer, again on the owner's 'written authorization to proceed,' will furnish additional services in the bidding or negotiating phase and the construction phase.

The schematic planning phase of this project yielded a written report by RS&H of the considerations involved in the problems at hand, general alternative solutions and recommendations, preliminary design criteria and a preliminary costs estimate, all as required by the contract. ² On about November 5, 1972, according to RS&H project manager Morgan, RS&H recommended to Jacquin that a small pilot plant be operated to collect waste treatment data useful in preparing the 'preliminary design documents consisting of final design criteria, preliminary drawings and outline specifications' which the contract described as the fruit of the preliminary design phase. On November 8, general manager McHaffie of Jacquin mailed RS&H written authorization to proceed into the preliminary design phase.

There are irreconcilable conflicts in the testimony concerning communications about the pilot plant. Morgan of RS&H testified that on November 21 he orally notified McHaffie that the original estimate of five to six thousand dollars had been revised upward to $9,500 and that McHaffie orally accepted the revised estimate on that date, two weeks before the plant was installed on December 7. McHaffie, on the other hand, testified that RS&H did not propose the pilot plant until after Jacquin's written authorization to proceed in the preliminary design phase had been solicited and given on November 8, that Morgan said the pilot study would not cost over $5,000, that the pilot plant was installed before Thanksgiving and that he, McHaffie, did not learn of the revision to $9,500 until he received Morgan's letter to that effect on December 11.

While we are handicapped by the trial court's failure to make findings supporting its disposition of the matters in controversy, Townsend v. Giles, 133 So.2d 451 (Fla.App.1st, 1961), appellant's assertion of error in the trial court's failure to make findings cannot be sustained under Florida practice. Dworkis v. Dworkis, 111 So.2d 70 (Fla.App.3d, 1959); American Motor Inns of Fla., Inc. v. Bell Elec. Co., 260 So.2d 276 (Fla.App.4th, 1972). Appellant's citations of decisions in jurisdictions requiring findings are inapposite. Contrast Rule 52, Fed.R.C.P. In this case we are able to ascertain the trial court's unstated findings necessary to the conclusion it reached. Our duty in these circumstances is to accept the evidence favorable to the party prevailing below and to disregard the conflicting evidence supporting appellant's position. Richards v. Dodge, 150 So.2d 477 (Fla.App.2nd, 1963); Coble v. Agnew, 128 So.2d 158 (Fla.App.2nd, 1969); Pergament v. Pergament, 117 So.2d 26 (Fla.App.2nd, 1960). See also Peacock v. Peacock, 207 So.2d 292 (Fla.App.1st, 1968).

Resolving the conflicts favorably to the position urged in support of the judgment below, we must presume that the trial court found on...