Sch. Bd. of Broward Cnty. v. Alexander
| Decision Date | 04 June 2014 |
| Docket Number | No. 4D11–4808.,4D11–4808. |
| Citation | 137 So.3d 1059 |
| Court | Florida District Court of Appeals |
| Parties | The SCHOOL BOARD OF BROWARD COUNTY, Florida, a political subdivision of the State of Florida, Appellant, v. PIERCE GOODWIN ALEXANDER & LINVILLE, a foreign corporation, Appellee. |
OPINION TEXT STARTS HERE
F. Malcolm Cunningham, Jr., and Amy L. Fischer of The Cunningham Law Firm, P.A., West Palm Beach, for appellant.
Jack R. Reiter and Avi R. Kaufman of Carlton Fields, P.A., Miami, for appellee.
In this case, the school board contracted with an architectural firm (“the architect”) to perform design services for the renovation of a high school. After construction was completed, the school board sued the architect, contending that numerous “change order items” (“COIs”) were a breach of the contract to provide design services. The COIs were generated due to changes in the initial design plans to meet building code requirements after construction commenced. A jury determined that the architect did not breach the standard of care as to COI 51, the most expensive COI litigated. As to other COIs for which liability was admitted (“COIs-liability-admitted”), the jury awarded damages. However, the circuit court granted remittitur as to seven of the COIs-liability-admitted.
Regarding COI 51, the school board appeals, contending that the circuit court erred by 1) failing to grant a partial summary judgment determining that the architect breached the standard of care; 2) allowing improper expert testimony regarding the standard of care; and 3) improperly instructing the jury on a negligence standard of care instead of a breach of contract standard of care. The school board also appeals the remittitur of damages. Without discussing all of the issues raised on appeal, we agree that the circuit court erred, and we reverse as to COI 51; as to the COIs-liability-admitted and remittitur, we affirm in part and reverse in part.
The parties entered into a forty-eight-page contract for design services for major renovations to a high school. The renovations involved changes to existing buildings and the construction of new buildings. The design services were to be provided in six phases.1 As typical for such projects, the school board retained the ongoing services of a peer reviewer to monitor and offer a second opinion of the design plans.
During the initial phase of performance under the contract in which the preliminary design plans were being developed for bidding by contractors and submitted for approval by the school board project manager, the peer reviewer submitted comments to a portion of the initial design plans. The peer reviewer contended that a portion of the plans were not code-compliant regarding fire safety. Specifically, the peer reviewer contended that a third floor balcony on one of the buildings required construction of a staircase as an emergency exit in case of a fire. The architect disagreed and suggested an alternative solution to meet the fire code standards that did not require the construction of a staircase. The record shows that the matter was discussed and negotiated over several months before the project proceeded to bidding by general contractors. The peer reviewer repeatedly disagreed with the architect's alternative solution. The design contract provided that the school board's chief building official (“building code official”) had final authority to determine the correct interpretation of all applicable building codes, statutes, and regulations. The architect believed its alternative solution was approved by the building code official based on oral statements made by the building code official during a meeting with the architect and the school board project manager to discuss the peer review comment regarding the need for a staircase to the third floor balcony. That meeting occurred prior to submission of the initial design plans for bidding by contractors.2
After the construction bidding process was concluded and construction commenced, the building code official determined the design plans were not code-compliant and a staircase was required for the third floor balcony. That decision resulted in the redrafting of plans by the architect and the implementation of COI 51. It also resulted in the school board paying more for the renovation because the general contractor's bid did not contemplate the construction of a staircase, and the initial construction had to be reworked.
There were many other COIs implemented during the construction phase of the project to address other design issues for other parts of the project.
Contending that all of the COIs increased the cost of construction and represented instances of breach of performance under the design contract, the school board filed a three-count complaint against the architect seeking damages for breach of contract, breach of contractual indemnity, and breach of common law indemnity.
The architect alleged two affirmative defenses: one asserting that “[the school board]'s damages are ‘betterment’ and therefore barred,” and the other asserting that “any of [the school board]'s claims determined to be First Cost Items, should be barred.” The concept of “first cost,” a key issue in this case, will be discussed below more fully. Notably, the applicable standard of care was not raised in the affirmative defenses or any defensive pleading. As discussed below, the architect raised the issue by way of a counterclaim for declaratory judgment.
The case was initially assigned to the general civil division of the circuit court. As the case neared trial, it was transferred to the “complex civil litigation” division of the circuit court.
As to COI 51, the thrust of the school board's suit was that the architect did not provide initial design plans for bidding by contractors that were code-compliant. One of the issues raised pretrial was the standard of care applicable to the contract between the parties. The school board contended that the standard of care was whether the initial plans were code-compliant as required by the contract (breach of contract standard). The architect contended that the standard of care was whether it performed its duties with ordinary and reasonable skill (negligence standard). The school board filed and argued two separate motions for partial summary judgment on liability as to COI 51, seeking a judgment determining that there was breach of duty, so that if granted, the only issue to be resolved by the jury would be the amount of damages. Both motions for partial summary judgment were denied on the basis that there were material disputes of fact. Neither order denying the motions ruled upon the applicable standard of care.
As stated above, the architect also sought a ruling on the applicable standard of care by filing a counterclaim for declaratory judgment seeking a judicial interpretation of the design contract. The architect filed a motion for summary judgment as to its counterclaim. The school board filed a cross-motion for summary judgment seeking a ruling on the applicable standard of care as well. Unfortunately, due to the case being handled by three different judges and being shifted to the complex civil litigation division, the cross-motions for summary judgment on the counterclaim were not addressed until after the jury was selected, but prior to opening statements.
The circuit court denied both cross-motions for summary judgment on the counterclaim, but after considering the arguments raised, decided the applicable standard of care for the presentation of issues to the jury. 3 The circuit court interpreted the contract to limit damages to those arising from “negligent performance.” As a result, the school board was prohibited from presenting evidence indicating that the initial design plans were not code-compliant. Additionally, the jury was instructed on a negligence theory of liability as requested by the architect, rather than a breach of contract theory of liability as requested by the school board. The jury was specifically instructed not to decide if the design plans were code-compliant.
The jury returned a verdict determining there was no breach of duty by the architect regarding COI 51.
Prior to trial, the circuit court entered an agreed order granting partial summary judgment of liability as to fifty-five COIs that were separate from COI 51. In addition to making the amount of damages the sole issue to be resolved by the jury, the agreed order regarding COIs-liability-admitted also granted the architect the right to seek a setoff for the “first costs and/or betterment credit.”
The jury awarded damages for each of the COIs-liability-admitted. Post-trial, the circuit court granted remittitur as to seven of the COIs-liability-admitted, which the school board appeals.
As previously discussed, the school board contended that the applicable standard of care was whether the initial design plans were code-compliant. The architect contended, and the circuit court agreed, the applicable standard of care was whether the architect prepared plans with ordinary and reasonable skill, which is a negligence standard.
The school board argues on appeal that the circuit court imposed a higher standard of care than the standard imposed by the contract when it insisted that the school board had to prove negligence to be entitled to damages. The architect argues on appeal that the standard that the school board sought to apply amounted to a strict liability standard of care. The architect anticipated that the school board would argue the fact that the final plans required a staircase was proof the initial plans were not code-compliant.
The school board argues that the circuit court erred in denying both of its motions for summary judgment of liability as to COI 51, which were heard months before trial...
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