Louisville Scrap Material Co., Inc. v. Petroleum Packers, Inc., 89-02936
| Decision Date | 13 July 1990 |
| Docket Number | No. 89-02936,89-02936 |
| Citation | 566 So.2d 277 |
| Parties | 15 Fla. L. Weekly D1825 LOUISVILLE SCRAP MATERIAL COMPANY, INC., Appellant, v. PETROLEUM PACKERS, INC., Appellee. |
| Court | Florida District Court of Appeals |
Bonita L. Kneeland of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, for appellant.
John J. Agliano and Jennifer A. Phelan of Annis, Mitchell, Cockey, Edwards & Roehn, P.A., Tampa, for appellee.
Louisville Scrap Material Company, Inc. challenges the trial court's order finding that it committed voluntary waste and the amount of damages awarded Petroleum Packers, Inc. in this breach of lease/negligence action. We affirm the trial court's finding that Louisville Scrap caused damage to the leased property, but reverse as to the amount of damages.
Louisville Scrap maintained a scrap business on property which it leased from Petroleum Packers. During the time that Louisville Scrap operated its business on the subject property, a portion of the seawall on the property was damaged. Although the trial court found that Louisville Scrap breached no duty, it did find that Louisville Scrap caused the damage to the seawall. The trial court awarded damages in the amount of $63,000.00 to Petroleum Packers. This represents the amount that Petroleum Packers paid to have the seawall repaired and restored.
Because we hold the trial court correctly found Louisville Scrap liable for the damage to the property, we will not address the issue regarding voluntary waste, but will concentrate on the other relevant issues raised.
The pretrial order, in this case, directed that all discovery be completed before the pretrial conference. The pretrial conference was scheduled for June 12, 1989, ten days prior to trial. There was no requirement in the pretrial order that the parties provide a list of witnesses.
On May 5, 1989, Louisville Scrap received interrogatories from Petroleum Packers which requested the names of any expert witnesses Louisville Scrap would introduce at trial, and the subject matter on which they would testify. Louisville Scrap hand-delivered the answers to the interrogatories to Petroleum Packers on June 12, at the pretrial conference. Listed as an expert witness for Louisville Scrap was Stephen Sonnenfeld, P.E. The interrogatories state that the subject matter on which Sonnenfeld would testify would be, among other things, the extension of the useful life of the seawall as a result of the repairs and restoration.
The pretrial conference order permitted further discovery depositions, including the deposition of Sonnenfeld, along with "other witnesses disclosed at or after pretrial." No objection was made to discovery pending at the time of the pretrial conference. After the pretrial conference, the deposition of Sonnenfeld was scheduled for June 19, 1989. On June 21, Petroleum Packers filed a motion in limine to prevent Louisville Scrap from being permitted to call its expert witness. The motion alleges that Petroleum Packers was prejudiced by not having Sonnenfeld's name until the day of pretrial. At trial, the court granted the motion based on the fact that the pretrial order stated that all discovery was to be completed by the pretrial conference. Counsel for Louisville Scrap asked for a continuance, which was denied.
At trial, two of Petroleum Packer's four experts commented...
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