Legare v. Music & Worth Const., Inc., BG-472
| Decision Date | 03 April 1986 |
| Docket Number | No. BG-472,BG-472 |
| Citation | 11 Fla. L. Weekly 783,486 So.2d 1359 |
| Court | Florida District Court of Appeals |
| Parties | 11 Fla. L. Weekly 783 Donna LEGARE and Jody Wathall, d/b/a Native Nurseries, Appellants, v. MUSIC & WORTH CONSTRUCTION, INC., Leon County and Henson Engineering, Inc., Appellees. |
John F. Tierney, III, Ft. Walton Beach, for appellants.
J. Craig Knox of Fuller & Johnson, Tallahassee, for appellee/Music & Worth Const., Inc.
R. William Roland and Michael G. Maida of Karl, McConnaughhay, Roland, Maida & Beal, P.A., Tallahassee, for appellee/Henson Engineering, Inc.
O. Earl Black, Jr., Asst. Co. Atty., Tallahassee, for appellee/Leon County.
Appellants seek reversal of a final judgment dismissing with prejudice their amended complaint, which sought to impose liability on appellees based upon negligence (counts I and VI) and third party beneficiary theories (counts II and VII). Appellants also assert that the trial court erred in striking with prejudice their claim for punitive damages. We affirm in part, reverse in part, and remand for further proceedings.
In January of 1982, appellees Music and Worth Construction, Inc. (Music & Worth) and Leon County entered into a contract whereby Music & Worth agreed to perform certain construction repairs along a portion of Centerville Road located in Tallahassee, Florida. Completion of this construction project occurred in July 1982. According to appellants' first amended complaint, the contract between Music & Worth and Leon County included provisions requiring Music & Worth to "insure the least practicable inference with traffic" along Centerville Road by "avoid[ing the creation of] obstructions or hazards to any traffic" and "adequately maintaining all lanes used for maintenance of traffic" so as to "refrain from isolating places of business and [to provide] access to all places of business whenever construction interferes with existing means of access." However, those portions of the contract between Music & Worth and Leon County attached to the amended complaint do not make specific reference to ingress and egress of businesses abutting Centerville Road. 1 Although appellants have filed requests for production of the contract, Music & Worth evidently produced only a portion of the various contractual provisions. However, appellants filed no motion to compel Music & Worth to produce the entire contract between it and Leon County. 2
In any event, subsequent to completion of the Centerville Road construction, appellants filed their seven-count amended complaint against Music & Worth, Leon County, and appellee Henson Engineering, Inc. (Henson), the supervising engineer for the construction project. 3 Appellants alleged that Music & Worth was negligent in its performance of the construction repairs along Centerville Road, based upon Music & Worth's alleged failure to follow contractual provisions relating to maintenance of continued access for abutting landowners. The complaint also alleged negligence on the part of Leon County and Henson for failure to supervise the construction activities of Music & Worth. The amended complaint further alleged that appellants' business, Native Nurseries, was a third party beneficiary of the contract between Music & Worth and Leon County, and that appellees' negligence in breaching the alleged business access provisions of the contract caused appellants to lose business income and customer goodwill. Finally, the amended complaint also included a claim for punitive damages against Music & Worth, based upon allegations that it "willful[ly], wanton[ly], and intentional[ly]" delayed reopening access to Native Nurseries during the Centerville Road construction project.
Leon County filed an answer which included as an affirmative defense the contention that appellants' claimed injuries were caused by the acts of third parties, Music & Worth and Henson, over whom the county exercised no control or authority. Music & Worth responded by moving to strike appellants' claims for both punitive damages and lost business income, growth, and customer goodwill. Music & Worth also moved to dismiss the count relating to appellants' third party beneficiary theory. Henson filed a motion to dismiss all counts against it. Subsequently, by order dated January 31, 1985, the trial court granted Music & Worth's motion to strike the punitive damages claim with prejudice. The order also granted the motions to dismiss on all remaining counts except count I, relating to a claim for property damages against all three appellees. Appellants were granted twenty days from the date of entry of the order to file a second amended complaint on all counts except the punitive damages claim. When appellants declined to do so, appellees separately moved for either final judgment or partial final judgment.
At a further hearing on the above motions, appellants asserted that their first amended complaint stated a cause of action against appellees as pled, and that they would not seek to amend it further. Appellants also indicated that in light of the trial court's dismissal with prejudice of the punitive damages claim, and the impact of this dismissal on their ability to meet the jurisdictional amount requirements, appellants would dismiss their claim for property damages since, according to appellants, their claims for business losses were the "true essence of [the] entire case." Upon this announcement by appellants, the trial court granted the various motions of appellees, and entered an order of final judgment of dismissal on all claims raised by appellants.
Appellants first contend that the trial court erroneously dismissed their claims against appellees Music & Worth, and Henson Engineering, Inc., for business losses. Appellants acknowledge Florida law barring a land owner from maintaining an action for lost business income resulting from the obstruction or closing of a road during construction, 4 but assert that they are not attempting to recover damages caused by the mere closing of Centerville Road in front of their business. Instead, appellants maintain, they seek recovery for the alleged negligence of appellees, a basis of recovery they claim is recognized by Florida law. We agree.
The rule that "incidental" impairment of an abutting landowner's rights to ingress and egress caused by road construction on adjacent public highways, see footnote 4, supra, states no claim for damages is said to apply only where the construction undertaken is performed lawfully, and without negligence or misconduct. Cawthon v. Town of Defuniak Springs, 102 So. 250, 88 Fla. 325 (Fla.1924); Crum v. Sumter County, 60 So. 723, 68 Fla. 120 (Fla.1914). Where such negligence or misconduct is alleged to have occurred during construction, an action sounding in tort is considered proper. State, Department of Transportation v. Donahoo, 412 So.2d 400, 403 (Fla. 1st DCA 1982); Division of Administration, State of Florida, Department of Transportation v. Frenchman, 476 So.2d 224, 229 (Fla. 4th DCA 1985). Other courts, although denying recovery on the particular facts involved, have recognized that an action may be predicated on allegations that street construction or repair operations have been negligently performed, causing the time for completion of the project to be unreasonably prolonged, thus continuing interference with the business access for an unnecessary length of time. Myers v. District of Columbia, 17 F.R.D. 216, 217 (D.C.Dist.Colum.1955); Lewis v. Globe Construction Company, Inc., 6 Kan.App.2d 478, 630 P.2d 179, 184 (1981). Here, appellants' amended complaint alleges two separate bases for finding appellees Music & Worth and Henson Engineering negligent: failure to insure the least interference with access to Native Nurseries during construction, and requiring seven months to complete the performance of the construction. Therefore, we hold that the trial court erred in dismissing counts I and VI of appellants' amended complaint.
We also find merit to appellants' claim that counts II and VII, alleging a third party beneficiary theory, were...
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...917 (Fla. Dist. Ct. App. 2021), review denied , No. SC21-576, 2021 WL 2588930 (Fla. June 24, 2021) ; Legare v. Music & Worth Const., Inc. , 486 So. 2d 1359, 1362 (Fla. Dist. Ct. App, 1986) (holding that the contract must "clearly establish the parties’ intent to create a right primarily and......
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Wellin v. Wellin
...at first blush to be fairly strict. However, in application this rule is not so exacting. The case of Legare v. Music & Worth Const., Inc., 486 So.2d 1359, 1360 (Fla.Dist.Ct.App.1986), is instructive. In Legare, Music & Worth Construction, Inc. and Leon County entered into a contract for Mu......
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McKinney-Green, Inc. v. Davis
...Oaks of Kanapaha, Inc., may make him an incidental or consequential third-party beneficiary, we held in Legare v. Music & Worth Constr. Co., Inc., 486 So.2d 1359 (Fla. 1st DCA 1986), that the right of a third-party beneficiary of a contract to sue for its enforcement is limited to those sit......
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Glen Garron, LLC v. Buchwald, Case No. 5D15–2279
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