Sarasota Renaissance II, Ltd. v. Batson-Cook Co.

• Decision Date: 12 June 2013
• Docket Number: No. 2D11–5449.,2D11–5449.
• Citation: 117 So.3d 1184
• Court: Florida District Court of Appeals
• Parties: SARASOTA RENAISSANCE II, LIMITED PARTNERSHIP, Appellant, v. BATSON–COOK COMPANY, a foreign corporation; Cooper Carry and Associates, Architects, a foreign corporation; Bay Area Property Services, Inc., f/k/a West Tampa Glass Company, Inc.; Economy Caulking, Inc.; Fidelity & Guaranty Insurance Company; Hartford Casualty Insurance Company; and Winco Manufacturing Co., Inc., Appellees.

117 So.3d 1184

SARASOTA RENAISSANCE II, LIMITED PARTNERSHIP, Appellant,

v.BATSON–COOK COMPANY, a foreign corporation; Cooper Carry and Associates, Architects, a foreign corporation; Bay Area Property Services, Inc., f/k/a West Tampa Glass Company, Inc.; Economy Caulking, Inc.; Fidelity & Guaranty Insurance Company; Hartford Casualty Insurance Company; and Winco Manufacturing Co., Inc., Appellees.

No. 2D11–5449.

District Court of Appeal of Florida,

Second District.

June 12, 2013.

Keith D. Skorewicz and Edward O. Savitz of Bush Ross, P.A., Tampa; W. Scott Hamilton and Diane R. McGinness of Price, Hamilton & Price, Chartered, Bradenton; and Conrad Lazo of Fowler White Boggs, P.A., Tampa, for Appellant.

Nicholas A. Shannin and Brian W. Bennett of Page, Eichenblatt, Bernbaum & Bennett, P.A., Orlando, and Frank A. Hamner of Frank A. Hamner, P.A., Winter Park, for Appellee Cooper Carry and Associates, Architects; and Kenneth L. Olsen and Traci B. Taylor of The Law Firm of Kenneth L. Olsen, Tampa, for Appellee Economy Caulking, Inc.

Eric Peterson of the Law Firm of Peterson Bernard, West Palm Beach, for Appellees Bay Area Property Services, Inc., and Hartford Casualty Insurance Company.

No appearance for remaining Appellees.

WALLACE, Judge.

Sarasota Renaissance II, Limited Partnership (SRII), appeals a final order dismissing it as a party plaintiff in the construction litigation pending in the circuit court. Because SRII did not object to entry of the order under review, its appellate arguments are unpreserved. Thus we affirm the circuit court's order, but we write to further explain our decision.

I. THE FACTS AND PROCEDURAL BACKGROUND

Batson–Cook Company initiated the underlying litigation in November 2004 when it sued SRII for breach of an oral reconstruction agreement. Batson–Cook and SRII entered into the agreement following water-intrusion damage caused by Tropical Storm Gabrielle to a Sarasota condominium building. SRII was the developer of the building, and Batson–Cook was the general contractor. According to Batson–Cook's complaint, investigations concerning the water-intrusion damage resulted in conflicting claims about the cause and responsibility for the damages, including

(i) the claim that the water intrusion and damages were the result of deficient design, (ii) the claim that the water intrusion and damages were the result of deficient construction ..., (iii) the claim that the water intrusion and resulting damages were the result of an Act of God and were therefore a casualty loss[,] and (iv) the claim that the water intrusion and resulting damage were the result of a combination of the above.

(Emphasis added.) In addition, Batson–Cook asserted that Cooper Carry and Associates, Architects (the architect on the project), and Batson–Cook's subcontractors were placed on notice of the foregoing issues. Rather than waiting for a determination of responsibility, SRII and Batson–Cook orally agreed that they would begin repairs immediately, with Batson–Cook continuing as the contractor and the original subcontractors performing the repairs. Batson–Cook and SRII further agreed that Batson–Cook would not be paid during the performance of the reconstruction agreement, “but that payment would be made after the conclusion of the work at such time as there was a determination of the party or parties responsible for the water intrusion and resulting damages” and “that upon the conclusion of the remediation, the parties would move promptly to effect such a determination.”

Batson–Cook alleged that it expended in excess of $2.9 million in performing the repairs, and it alleged that SRII had expended $3.5 million in remediation. Batson–Cook asserted that SRII was in breach of the reconstruction agreement because

[d]espite the conclusion of the work contemplated by the Reconstruction Agreement ... and despite repeated requests by [it] that [SRII] cause the institution of proceedings that would result in a determination of the responsibility for the water intrusion and resulting damages (and therefore the “settling up” contemplated by the parties in the terms of the Reconstruction Agreement), [SRII] has failed to take the action that it agreed to take so that [Batson–Cook] would be paid by [SRII].

SRII answered the complaint and filed counterclaims against Batson–Cook and third-party claims against Cooper Carry and Federal Insurance Company, a construction surety that had issued a performance bond for Batson–Cook. SRII made claims against Batson–Cook for breach of contract/express warranty, for violation of Florida's building codes, and for a declaratory judgment; a claim against Federal Insurance for contractual indemnity; and claims against Cooper Carry for breach of contract, violation of Florida's building codes, and professional malpractice.¹ In 2006, the condominium association for the building filed a separate lawsuit against many of the same parties involved in the 2004 litigation initiated by Batson–Cook. Although those claims are not pertinent to this proceeding, we note that the trial court consolidated the association's litigation with the 2004 case.

In January 2011, Batson–Cook settled its claims with SRII in both the 2004 and 2006 cases. Specifically, the settlement agreement provided as follows:

The Parties desire and intend to (i) resolve any and all claims for direct liability of either of them to the other which have been asserted, or which could have been asserted by or between them while, at the same time, denying any liability for any such claims, (ii) address the claims that [SRII] has or could have asserted against Cooper Carry and Associates Architects, Inc. (“Architect”), both for its damages and for the damages and claims asserted against it by Batson–Cook, by [SRII] assigning same to Batson–Cook, and (iii) address the claims for vicarious liability of Batson–Cook to [SRII] for the acts and inactions of its subcontractors by [SRII] assigning to Batson–Cook its claims against Batson–Cook to the extent of Batson–Cook's vicarious liability for the actions and inactions of its subcontractors. It is expressly understood, intended and agreed by the Parties that this Settlement Agreement shall not in any way extinguish, waive, prejudice or operate as a release of any of the claims assigned by [SRII] to Batson[-]Cook referenced in Exhibit “A” (“Assignment of Claims and Causes of Action”).

(Emphasis added.) In the settlement agreement, the parties repeatedly expressed their intent to assign SRII's claims against Cooper Carry to Batson–Cook and that those claims were not to be released.² SRII also agreed to cooperate reasonably with Batson–Cook in the prosecution of the assigned claims.

In the assignment, SRII assigned to Batson–Cook all of its claims against Cooper Carry and its affiliates, agents, and representatives. Similarly, SRII assigned to Batson–Cook any claims that SRII had against Batson–Cook. The assignment included a provision under which SRII irrevocably appointed Batson–Cook as its representative to pursue the assigned claims.

In January 2011, the parties to the 2004 and 2006 proceedings, including Cooper Carry, entered into a stipulation to continue the trial of the 2004 litigation, which was set for February 22, 2011. After the entry of the stipulation, in April 2011, Batson–Cook filed a motion for leave to file an amended complaint “to add the necessary allegations in order to correctly identify and delineate the claims of BATSON[-]COOK and of [SRII] of [sic] by whom BATSON[-]COOK has been assigned its claims.”

At the hearing held in May 2011 on its motion to amend the complaint in the 2004 litigation, Batson–Cook's counsel argued that Batson–Cook “has its claims for the money that it spent in remediating the Renaissance project. Also, Batson–Cook has been assigned [SRII's] claims for the money [SRII] spent in remediating the Renaissance project following Tropical Storm Gabrielle in 2001.” Counsel stated, “[T]his is our motion to amend to assert the assignment by [SRII] to Batson–Cook.” Cooper Carry, along with several subcontractors affected by the proposed amendment, opposed the motion for leave to amend, arguing that they would be prejudiced by any amendment and that any amendment would be futile.³ Following the hearing, the circuit court denied Batson–Cook's motion for leave to file an amended complaint. The circuit court accepted the arguments that the amendment would be prejudicial and futile and that finality should be reached in the case. Batson–Cook filed a motion for rehearing, which the circuit court also denied.⁴

Next, in July 2011, Cooper Carry filed a motion to “drop” SRII from the 2004 litigation under Florida Rule of Civil Procedure 1.250(b). Cooper Carry asserted in its motion that SRII had assigned all of its claims in connection with the litigation to Batson–Cook, had “settled out of the [2004] case,” but “ha[d] failed to procedurally remove itself from the 2004 action.”

Batson–Cook objected to “dropping” SRII from the litigation; it also filed a motion for substitution of its counsel on behalf of SRII. Batson–Cook argued that a number of SRII's claims remained viable in the litigation and that the circuit court should permit counsel for Batson–Cook to try SRII's claims. Batson–Cook argued that there was no authority to support “dropping” SRII as a party under rule 1.250(b) in the circumstances of this case. In addition, Batson–Cook explained that—in accordance with Florida Rule of Civil Procedure 1.260(c)—when a claimant transfers its interest in a cause of action while the litigation is pending a court has two alternatives: (1) to allow the action to be continued in the name of the original claimant or (2) to allow the person to whom the cause of action was transferred to be either substituted for or joined with the original claimant.

The circuit court held a hearing on Cooper Carry's motion to “drop” SRII as a party in September 2011. At the hearing...