Mivan (Fla.), Inc. v. Metric Constructors, Inc., 5D02-1788.
| Decision Date | 29 August 2003 |
| Docket Number | No. 5D02-1788.,5D02-1788. |
| Citation | 857 So.2d 901 |
| Parties | MIVAN (FLORIDA), INC. n/k/a Mivan, Inc., Appellant, v. METRIC CONSTRUCTORS, INC., et al., Appellees. |
| Court | Florida District Court of Appeals |
Lewis J. Conwell and Matthew J. Meyer of Piper Rudnick LLP, Tampa, for Appellant.
Herman M. Braude of Braude & Margulies, P.C., Washington, DC and Stuart H. Sakwa of Leiby Taylor Stearns Linkhorst and Roberts, P.A., Fort Lauderdale, for Appellees Metric Constructors, Inc. and Firemen's Fund Insurance Company.
Paul L. SanGiovanni, Daniel H. Coultoff and Richard P. Spence of Gronek & Latham, LLP, Orlando, for Appellee Universal City Development Partners, LP.
Mivan (Florida), Inc. (hereinafter Mivan) appeals the final summary judgment in favor of Metric Constructors, Inc. (hereinafter Metric) and Fireman's Fund Insurance Company (hereinafter Fireman's). Because issues of material fact remain unresolved that prevent the entry of summary judgment, we reverse.
Universal City Development Partners (hereinafter Universal), an owner and developer of various theme properties in Florida, entered into a general construction contract with Metric, calling for Metric to act as the general contractor on a certain development project at Universal Studios in Orlando. Almost simultaneously, Universal entered into a contract with Mivan pursuant to which Mivan was to perform specialized work on the facades of several buildings in the project.1 Universal subsequently assigned the Mivan contract to Metric as the general contractor of the project.
Mivan completed its work and filed a claim of lien for uncompensated work performed. When the lien went unsatisfied, Mivan filed a multi-count complaint alleging, among other things, that Metric breached its assigned contract by failing to pay for a substantial amount of the work Mivan performed and seeking foreclosure of its construction lien against Universal. Metric filed a motion for summary judgment alleging that Mivan failed to properly obtain and maintain a license in accordance with Chapter 489, Florida Statutes, and thus could not enforce the contract pursuant to applicable statutory law. The trial court granted Metric's motion and Mivan appealed.
In Krol v. City of Orlando, 778 So.2d 490, 491-92 (Fla. 5th DCA 2001), this court enunciated the appropriate standard of review that we must apply when deciding whether a trial court correctly ruled on a motion for summary judgment:
The proper standard of review of a summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000); Sierra v. Shevin, 767 So.2d 524 (Fla. 3d DCA 2000). In order to determine the propriety of a summary judgment, this court must resolve whether there is any "genuine issue as to any material fact" and whether "the moving party is entitled to a judgment as a matter of law." Fla. R. Civ. P. 1.510(c). Generally, "[t]he party moving for summary judgment has the burden to prove conclusively the nonexistence of any genuine issue of material fact." City of Cocoa v. Leffler, 762 So.2d 1052, 1055 (Fla. 5th DCA 2000) (citing Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966)). We must consider the evidence contained in the record, including any supporting affidavits, in the light most favorable to the non-moving party, the Appellants, and if the slightest doubt exists, the summary judgment must be reversed. See Sierra.
Whether summary judgment is appropriate in the instant case depends on the proper application of certain provisions contained in Chapter 489, Florida Statutes, to the facts of the instant case. This legislative compilation was enacted based on the Legislature's recognition "that the construction and home improvement industries may pose a danger of significant harm to the public" and the perceived need "in the interest of the public health, safety, and welfare to regulate the construction industry." § 489.101, Fla. Stat. (1997). Specifically, the trial court entered summary judgment in reliance on section 489.128, Florida Statutes (1997), which provides:
As a matter of public policy, contracts entered into on or after October 1, 1990, and performed in full or in part by any contractor who fails to obtain or maintain a license in accordance with this part shall be unenforceable in law or in equity. However, in the event the contractor obtains or reinstates his or her license, the provisions of this section shall no longer apply.
§ 489.128, Fla. Stat. (1997).2
If a business organization proposes to engage in contracting in Florida, it must apply for a certificate of authority through a qualifying agent. § 489.119(2), Fla. Stat. (1997). The qualifying agent is "responsible for supervision of all operations of the business organization; for all field work at all sites; and for financial matters, both for the organization in general and for each specific job." § 489.1195(1)(a), Fla. Stat. (1997). The qualifying agent must be certified or registered in order for the business organization to obtain a certificate of authority to conduct the type of contracting business for which the qualifying agent is certified or registered. § 489.119(3)(a), Fla. Stat. (1997). Any person who wishes to engage in the business of contracting in Florida must comply with the certification or registration requirements. § 489.113(2), Fla. Stat. (1997); see also § 489.105(7)-(11), Fla. Stat. (1997). The specific certification or registration criteria are relative to whether a contractor wants to engage in contracting business statewide or in a localized area within the state. § 489.113(1), Fla. Stat. (1997); see also § 489.105(7)-(11), Fla. Stat. (1997); Deep South Sys., Inc. v. Heath, 843 So.2d 378, 379 n. 1 (Fla. 2d DCA 2003). Mivan argues that it complied with these statutory provisions and that it obtained and maintained a license for all relevant periods of the contract. Therefore, according to Mivan, Metric has failed to carry the burden of proof sufficient for summary judgment.
The record reflects that Mivan applied for a qualified business organization license number in January 1997. Mivan asserts that the application was submitted on January 3, 1997, while Metric contends it was not until January 30, 1997. The $50 filing fee was not credited until January 24, 1997, thus the latter date of application appears to...
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